Introduction
Among the fundamental needs shared by all humans, water is one of the most universally recognized. Yet, in the United States the idea that household water for drinking and basic hygiene is a constitutional right has seldom been embraced at any level of government. Instead, there are notorious examples of massive water shutoffs in Detroit and Baltimore,1 and routine water shutoffs in many other communities.2 While many states and local authorities across the country suspended water shutoffs temporarily during the officially-declared COVID-19 crisis, others did not.3 Moreover, these suspensions were not open-ended; shutoffs for non-payment resumed long before the economic impacts of the pandemic were resolved.4 In the middle of a pandemic where handwashing and hygiene are critical to public health, water shutoff practices nationwide were a crazy-quilt of discretionary actions or omissions by local authorities.5
Even in the best of times, access to household water in the United States is legally protected only at the margins, if at all.6 The U.S. Constitution does not directly mention water. Procedural due process protections may apply to water service but do nothing to prevent shutoffs for nonpayment.7 A handful of state constitutions articulate a right to water, but their provisions have not been expansively construed.8 The United States even abstained from the United Nations vote to recognize an international human right to water in 2010; the resolution passed in the General Assembly and the Human Rights Council without U.S. support.9 By statute, California does recognize water as a human right; the laudable statutory requirements increase transparency but fall short of an enforceable mandate.10 Racial discrimination in water administration remains legally actionable under the federal Constitution and federal fair housing laws, but the proof required under current laws generally demands significant resources to uncover.11 In any event, this is limited relief; the impacts of water deprivation are devastating regardless of whether illegal discrimination can be established as a factor leading to the shutoffs.12
What is household water’s constitutional status, then? Using Cass Sunstein’s framework for grounding the protection of basic human needs in constitutional theory, Sharmila Murthy has argued that in the United States the right to water is a “constitutive commitment”; that is, while the right to water falls short of constitutional status, it merits near-constitutional protection and cannot, as a practical matter, be withdrawn without a fundamental shift in the understanding of government obligations.13 Writing in 2004, Sunstein listed “the right to some kind of social security program; the right not to be fired by a private employer because of your skin color or your sex; [and] the right to protection through some kind of antitrust law” as examples of constitutive commitments.14 Water is certainly a strong candidate for that list. Like social security or protection from discrimination, water is an end in itself, not merely a means to a beneficial end.15 Further, as Murthy observes, water is popularly viewed as tantamount to a right.16 For example, in a 2017 poll of voters in western states, ninety-seven percent registered support for “[e]nsuring safe, affordable drinking water for everyone,” with only one percent opposing the proposition.17
In this Article, however, I argue that access to basic household water is more than a constitutive commitment and should instead be recognized as a constitutional right. This argument is sharpened by the COVID-19 pandemic. The human need for water did not change between March 12, 2020, and March 13, 2020, the day when the pandemic was formally recognized in the United States; the need for water remains constant and immutable. Rather, the pandemic reveals why household water for drinking and basic hygiene is not only critical for “life,” but also necessary to achieving one of the Constitution’s fundamental goals, the nation’s “general Welfare.”18
Were it recognized as a constitutional right, sufficient water to meet basic human needs could only be denied if the government met the highest standards of proof, showing that any denial of household water was narrowly limited to instances that are “compelling.”19 Further, constitutional protection would provide a permanence that is lacking in the status of constitutive commitment or in statutory protections, which by definition may be subject to changing political winds.20 Given its unique status and characteristics, I argue that basic household water should be recognized as a constitutional right under United States law even though—just as with established fundamental rights such as marriage and privacy—it is not explicitly identified in the constitutional text.21
Like Murthy, my argument takes note of the fundamental assumptions made at the individual and community level regarding government protections for water. Access to household water has long been an expected baseline in the United States.22 Indeed, COVID-19 has convincingly demonstrated that water authorities may be loath to shut off household water even when consumers are unable to afford their water bills in the short term.23
But, I assert, the scourge of COVID-19 demonstrates that household water is not properly viewed as a mere commodity available for purchase by those with the means, and that the failure to press for its recognition as a constitutional right has serious consequences that are exacerbated by dramatic rises in water costs in recent years.24 The absence of constitutional protection for water access enables its manipulation in ways that reflect and reinforce political power, at the expense of human wellbeing.25 It is no coincidence that the communities in the United States that are least likely to have ready access to potable water are Indigenous peoples and communities of color, a fact that COVID-19 has brought into stark relief.26 It is no accident that because water is not considered to have constitutional weight in its own right, there is little legal recourse when those in power simply accept the absence of potable drinking water, with its consequent hardship and disease for some already marginalized communities.27 The dynamics of the coronavirus pandemic drive home the fact that these impacts are not only individual, but community-wide.
In considering how a constitutional right to household water might be recognized in the United States, I take inspiration from the reasoning set out in the initial ruling in Gary B. v. Whitmer, in which a three-judge panel of the Sixth Circuit Court of Appeals upheld a federal constitutional right to basic literacy.28 Though the decision was later vacated by the Court of Appeals sitting en banc, the majority of the initial three-judge panel found that the right to basic literacy underlies explicit protections in the Constitution, such as the right to free speech and to vote.29 Likewise, I argue that federal constitutional text—drafted to protect the “general Welfare” and providing explicit protections for “life” and “liberty”—supports an implicit “freedom from thirst,” i.e., a right to basic household water needed to support life.30 This argument has been explored before by others, but the context of COVID-19 gives it new urgency and resonance.31 In particular, the pandemic draws attention to the Constitution’s textual support for construing substantive rights in ways that protect the “general Welfare,” furthering the community-centered purposes set out in the Constitution’s Preamble.32
This Article explores the human right to drinking water from several angles that together suggest a roadmap for recognizing the constitutional status of household water for drinking and basic hygiene. In Part I of this Article, I offer a snapshot of the treatment of household water in times of economic hardship, suggesting that there are deep roots for water as a special case. In the Great Depression of the 1930s and more recently during COVID-19, water’s status is sometimes elevated on a temporary, situational basis. These policies are driven by public health and moral concerns as much as by law, often informed by the recognition of collective impacts.33 James Salzman traces this special treatment back to ancient times, denominating it as a customary “right to thirst” that recognized an unwritten obligation to share water with a person who was thirsty.34
In Part II, I shift the focus to trace the trajectory of the right to water in the international human rights context, where over time, water’s clear significance and unique, enduring qualities overcame objections that the right was not explicitly articulated in founding international law documents.35 Subsequent international instruments singling out water for protection confirm the understanding that water is a human right.36
Part III examines the status of the right to water as a matter of comparative law, looking at foreign constitutional provisions and case law to understand the potential scope of the legal right. As this examination reveals, identifying a constitutional right to basic drinking water does not resolve all the issues that might arise concerning the production and distribution of household water; there is plenty of work for governments and courts to do in implementing the right. In this respect, the right to basic household water is no different from other important constitutional rights, such as the amorphous Fourteenth Amendment rights to due process or equality under the law in the United States, which have been honed through case law and changing circumstances over more than 150 years.37
Part IV of this Article applies these lessons to drinking water in the domestic constitutional context. I examine several state constitutional provisions addressing water to ascertain their meaning and intention.38 I then turn to the federal Constitution, comparing the right to basic household water to other fundamental rights identified by courts, particularly focusing on the right to literacy.39 I argue that the Constitution’s purpose of promoting the “general Welfare” supports a construction of the rights to life and liberty that takes account of community-wide impacts of denying basic water.
I conclude that access to basic drinking water is not only an international human right, but should also be a recognized federal constitutional right, as a component of the substantive due process protections of life and liberty. This argument has always been potent. The pandemic demonstrated its urgency.
I. A Fifth Freedom?
In 1932, the Great Depression was near its nadir.40 In July of that year, the stock market reached its lowest point, a ninety percent drop since the crash in 1929.41 Nearly one in four Americans were unemployed.42 Less than a year later, President Franklin D. Roosevelt’s administration would initiate a series of interventions to turn the economy around and provide wages for workers—programs like the Civil Works Administration (CWA) (1933–1934), the Civilian Conservation Corps (CCC) (1933–1942), and the Works Progress Administration (WPA) (1935–1943).43 However, 1932 was an election year. Roosevelt was running on the Democratic ticket, and President Herbert Hoover, a Republican and native Iowan who was philosophically opposed to federal intervention in the economic market, was still in the White House.44
At the Des Moines Water Works (DMWW), as unemployment grew more widespread, water administrators needed more than philosophy to solve the issues that they faced. Thousands of men in the community were out of work and unable to pay their family’s water bills.45 A state law barred the water authority from discriminating between consumers.46 In the DMWW’s view, there could be no special arrangements, no discounts or debt forgiveness; either every customer paid the established rate or no customer paid, despite differences in need.47 But shutting off the water supply of neighbors and friends was a tough business, particularly given the broad scope of the problem and the potential for public health consequences that could affect an even wider swath of Iowans.48
It was good news, then, when the local water works board and Charles Denman, the DMWW manager, came up with a plan.49 Starting in August 1932, months before federal work programs would be announced, DMWW customers could have the opportunity to “work off” their bills.50 Laboring for $0.40 per hour, a fair wage at the time, the men planted trees and shrubs on the water works grounds, inspected hydrants, and laid pipes for the water main.51 With the average family water bill per quarter at $2.25, just six hours of work would pay for three months of household water service.52
Contemporaneous newspaper accounts describe the program as a resounding success.53 In November 1933, the Des Moines Register reported that 4,500 men had taken advantage of the initiative.54 The extensive plantings beautified the city, and the other work moved infrastructure projects forward ahead of schedule.55 The workers were apparently happy too. Dale L. Maffitt, a water works manager, told the press, “Many have expressed their satisfaction at the opportunity to work out their bills. They feel they are earning at least a part of their living. It helps them keep their self respect.”56
DMWW was not alone in adopting this approach. Beyond Iowa, other states in the Missouri Valley section of the American Water Works Association, which included Kansas, eastern Nebraska, South Dakota, and Missouri, permitted “worthy” delinquents to “work out the bills.”57 Miles away, in Dover, New Jersey, water customers were also employed for short stints to pay off their water bill debt, though with a slight difference.58 The Dover program paid the workers in cash rather than in water credits, giving them some autonomy in deciding how to allocate their wages. In 1934, George Steffany, President of the Dover Board of Water Commissioners, described the program:
We have no common laborers in our employ. We hire for that purpose those who want to work out their water bill. Usually two days will suffice. They are paid in cash. Then they pay the water bill and usually have a few dollars left over. . . . Our employment is for work that must be done for proper maintenance or extension purposes. A man can get this employment almost anytime, even to leaving his pay check in escrow to pay a water bill not yet rendered.59
In the midst of a widespread economic depression, local water authorities latched on to these approaches because the alternative, shutting off household water, seemed untenable, mean, and potentially harmful. When they could, consistent with their legal constraints, water authorities would delay bills, develop payment plans, and in some instances, accept partial payments.60 In a time of high unemployment, when even those who were formerly “comfortably well-to-do” could not pay their bills, there was little to be gained by further jeopardizing public health and shutting off water completely.61
One contemporaneous author, E. Grosvenor Plowman, labeled this a “social responsibility” approach to water management, and noted that during the Great Depression, water utilities were “forced to acquiesce in the social responsibility point of view by delaying turnoff of thousands of delinquent customers for months.”62 This “force” was of their own making; the law, in Iowa and elsewhere, often cut the other way, to require equal treatment of those who had equal need for basic drinking water but unequal capacities to pay for it.63 Given the realities of the situation, Plowman concluded that “[w]ater utilities must soon face the fact that their monopoly of portable water supply carries as its natural converse the responsibility of furnishing water for the necessities of life to all without charge or taint of charity.”64
Just a few years later, in 1941, President Roosevelt delivered his famous Four Freedoms speech, which identified freedom of speech, freedom of worship, freedom from want, and freedom from fear, as central American values that should be shared with the world.65 Offered in the wake of the Great Depression and in the midst of World War II, Roosevelt outlined these four freedoms as necessary pillars of a peacetime society and economy. “Freedom from want,” he opined, was necessary to achieve a “healthy peacetime life” after the war.66 It encompassed concrete items such as jobs, and also more general feelings of economic security and well-being.67
In 1944, Roosevelt expanded on these ideas and offered a more detailed list, now denominated as rights, in his proposed Second Bill of Rights.68 This “economic bill of rights” included rights to a decent home, to food, to adequate wages, to adequate medical care, and to a good education.69 Roosevelt did not suggest that these were constitutional rights, but rather offered this list as a legislative agenda for Congress.70 These are the proposed statutory rights that Cass Sunstein has labeled “constitutive commitments.”71
Water was not a part of Roosevelt’s formulation in either instance. Given that unemployed individuals just a few years before had been unable to pay their water bills, it seems unlikely that this was deliberate omission and that Roosevelt intended to convey that water was not important or that it was a matter of charity rather than a right.72 Possibly President Roosevelt assumed that household drinking water would continue to be made available by local water authorities, secure and inviolate as a part of the peacetime economy, and that any issues with its cost would be resolved through efforts to increase employment and wages.73 Possibly Roosevelt believed that a right to water already existed.
The omission was nevertheless consequential. The New Deal programs mounted from 1933 to 1939 assisted water authorities with infrastructure needs and provided employment so that families could afford basic amenities.74 However, these initiatives did not touch long-established bureaucratic arrangements that placed water access in the hands of local and regional authorities, or private entities, rather than the federal government.75 Likewise, because the vision articulated by Roosevelt did not identify access to water as a critical “freedom” or “right” to be addressed through federal initiatives, there was no suggestion that a right to water might be necessary to further the President’s vision.
For decades, water in the United States remained inexpensive relative to other basic needs, and there was little public pressure for federal oversight of water prices. As recently as 2007, a Note in the Harvard Law Review asserted that “[i]n the United States . . . water is considered much like air: both are important in the abstract, but are so abundant that the value Americans ascribe to them is relatively low.”76 Whatever the truth of this statement in 2007, it is certainly not the case for many Americans now. According to one analysis, water prices increased by an average of eighty percent between 2010 and 2018.77 Another study indicates that by 2022, more than one-third of Americans will find their household water bills to be unaffordable.78
When the COVID-19 pandemic began in 2020, the implications of water’s unprotected status became even clearer. Across the country, local water authorities and state and local governments acted independently and with varying levels of clarity to address household water needs amid growing unemployment and economic hardship.79 With hygiene and handwashing identified as key activities to stem the COVID-19 virus, access to household water was critical.80 At the same time, water rates reached record levels as local authorities struggled to maintain water infrastructure despite deep cuts in federal financial support over a period of years.81
Many local authorities adopted moratoria on water shutoffs for a time, sometimes in conjunction with the state governor’s declaration of a COVID-19 emergency, and perhaps paired with a moratorium on evictions.82 However, few (if any) local governments offered forgiveness of accumulating bills and reinstatement of water service, even during the emergency declaration, was the rare exception rather than the rule.83 Further, all of these measures were temporary. In many communities, consumers remained liable for the bills that accumulated during the moratorium and that came due when regular billing was reinstated.84 Many jurisdictions resumed water shutoffs for lack of payment long before there were signs of economic recovery and despite rising rates of COVID-19.85
Unlike the 1930s, water managers who were reluctant to curtail water access during the twenty-first century pandemic could not realistically offer consumers the opportunity to work off their bills; a myriad of legal and practical constraints stood in their way.86 Yet water authorities, and local communities more generally, are well aware of the impact that water shutoffs can have on individuals and families, and the downward economic spiral that such a shutoff can trigger.87 No wonder, then, that massive shutoffs like those initiated in Detroit set off widespread condemnation and a class action lawsuit.88
As described in the next Part, such policies allowing water shutoffs for households that cannot pay their bills violate the human right to water.
II. Finding the Human Right to Water
In some respects, the human right to water is relatively new. It was not until 2010 that the United Nations General Assembly approved a resolution recognizing the human right to water as a matter of international law.89 Yet it would be misleading to date the right to that official act of international recognition. In fact, the human right to water traces back to the Universal Declaration of Human Rights (UDHR), and the recognition of the rights to life (Art. 3) and to an adequate standard of living (Art. 25).90 The 2010 General Assembly resolution did not establish a new right, but simply made explicit what was already implicitly understood by virtue of the UDHR and the subsequent treaties implementing its provisions, particularly the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Together, these instruments, beginning with the UDHR in 1948, hold that there is a human right to basic drinking water.91
The UDHR is a declaration, not a treaty, though it holds substantial weight as a statement of international human rights norms.92 However, the UDHR was followed by two treaties that expanded on its basic provisions, both opened for signature in 1966: the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The United States has ratified the ICCPR but has only signed the ICESCR.93
The ICCPR, dealing with civil and political rights, does not explicitly touch on water. However, Article 6 of the ICCPR provides that “[e]very human being has the inherent right to life,” a right for which water is a necessary precursor.94
The ICESCR, addressing economic and social rights, is also silent on the issue of water.95 However, Matthew Craven, who analyzed the drafters’ intentions by examining the travaux préparatoires for the ICESCR, found that water was among the possible rights considered in the drafting of Article 11 on the “right to an adequate standard of living.”96 The notes of the negotiation indicate that Article 11 was intended to be broad; water is not identified in Article 11, but the list set out in the treaty—singling out the rights to food, clothing, and housing—was not meant to be exhaustive.97
Following the ICESCR and the ICCPR, by the 1970s, the right to water began to appear in both soft law and treaty language. According to Hall, Van Koppen, and Van Houweling:
One of the first explicit references to the human right to water for domestic uses in an international text is found in the conference report from the 1977 United Nations Water Conference in Mar del Plata, which positioned the right to drinking water in the context of basic needs: “all peoples, whatever their stage of development and their social and economic conditions, have the right to have access to drinking water in quantities and of a quality equal to their basic needs.”98
Two years later, the U.N. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) explicitly referenced women’s rights to water.99 Focusing on living conditions of rural women, CEDAW called for the elimination of discrimination against women and stated that women have the right “[t]o enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications.”100
As Murthy observes, soft law declarations such as the Mar del Plata statement, followed by specialized treaty provisions such as CEDAW’s addressing specific communities, “paved the way for the eventual recognition of the right to water and sanitation as within the scope of rights recognized by the [ICESCR].”101 That formal recognition came in in 2003, when the U.N. Committee on Economic and Social Rights issued a General Comment titled “the right to water,” clarifying that the ICESCR protects the human right to water.102 The committee located the right in Article 11, on an adequate standard of living; Article 12, on the right to health; and in the more general rights to life and human dignity.103 In 1989, the Convention on the Rights of the Child (CRC) reiterated the connection between water and the “highest attainable standard of health.”104 The CRC is the most widely ratified human rights treaty in the world.105 To fulfill their obligations under the CRC, states parties undertake “[t]o “combat disease and malnutrition . . . through, inter alia . . . the provision of adequate nutritious foods and clean drinking-water.”106
Beyond treaty language, the international community has also embraced several other mechanisms for ensuring the human right to water. The Millennium Development Goals (MDG), issued by the United Nations in 2000, included specific targets for expanded drinking water access to be achieved by 2015, recognizing access to water as an important component of global environmental sustainability.107 In 2008, a full two years before the U.N. General Assembly adopted its water rights resolution, the U.N. Human Rights Council created a new position of independent expert on the human rights to safe drinking water and sanitation.108 The experts serving in the role have done much to develop the real-world contours of the human right to water as they apply the right in practical contexts through country visits and thematic reports.109
In sum, the General Assembly’s 2010 Resolution did not so much create the human right to water as endorse the many developments—beginning with the UDHR—that led up to its explicit recognition. In the wake of the 2010 Resolution, the international community has continued to build on the human right to water, particularly with the widely embraced Sustainable Development Goal (SDG) 6, committing to “[e]nsure access to water and sanitation for all.”110 In force as of January 2016, the SDGs are targeted to be achieved by 2030.111 More recently, COVID-19 heightened international attention to the issue of water rights. For example, in March 2020, several United Nations experts joined to “call on governments to immediately prohibit water cuts to those who cannot pay water bills” and to “provide water free of cost for the duration of the crisis to people in poverty and those affected by the upcoming economic hardship.”112
In the United States, where the federal government is on record withholding its support for the human right to water in 2010, and local governments are left to decide these issues for themselves without national coordination, the United Nations’ calls have had little national impact.113 However, there are some notable examples of local embrace of human rights norms, with United States cities stepping into the gap left by federal inaction. As mentioned above, in 2012, California became the first state in the United States to declare that every human being in the state “has a right to clean, safe, affordable, and accessible water adequate for human consumption and sanitary purposes.”114 The law does not create a private cause of action, but rather, all relevant state agencies must consider the human right to water when “revising, adopting, or establishing policies, regulations, and grant criteria pertinent to water uses.”115
New York City articulated its commitment to the human right to water in its 2018 report on the city’s efforts to attain the SDGs.116 New York was the first city in the world to submit such a report, denominated as a Voluntary Local Review (VLR), to the United Nations.117 Since the United States government has largely stood aside from the SDG effort and has not completed a national review, VLRs take on an added significance in the United States.118 In its VLR, New York City identifies SDG 6, setting goals for clean water and sanitation, as a priority issue for the city.119 The report describes a number of city-based initiatives intended to attain SDG 6, including the Water Debt Assistance Program designed to assist vulnerable residents in paying water bills.120
Los Angeles’s VLR also highlights its efforts to achieve targets under SDG 6. For example, Los Angeles identifies a goal of establishing “permanent drinking water access in Skid Row,” a location where the city’s homeless residents are concentrated.121 Orlando, Florida, the first midsized United States city to undertake a VLR, has indicated SDG 6 will be a focal point of its forthcoming report.122
Several more United States-based VLRs are expected in the coming months and years.123 Local embrace of the human right to water through SDG 6 is a welcome development that demonstrates, if more proof was needed, the extent to which Americans view water access as fundamental to community well-being. At the same time, the VLR movement in the United States reiterates the fragmentary way that water access is addressed (or not) in the absence of a federal baseline.
III. The Constitutional Right to Water Around the World
Beyond international law, there is value in examining how other countries have addressed the human right to water in their domestic legal systems. Comparative law can be a vehicle for testing assumptions, as well as a source of ideas and inspiration. As Supreme Court Justice Breyer has indicated, comparative law can also be a vehicle for reinforcing the rule of law across democratic systems.124
One way that other countries have approached the right to water is by explicitly including it in their constitutions. Worldwide, dozens of national constitutions address the right to water, sometimes creating enforceable rights and other times setting out less concrete goals or commitments.125 Many of these provisions have been added in recent years, as nations incorporate contemporary human rights standards into their governing instruments.126
South Africa’s constitutional provision regarding water, providing simply that “[e]veryone has the right to have access to sufficient food and water,” has received particularly robust implementation.127 The constitutional provision is implemented through South Africa’s 1997 Water Services Act.128 Among other things, that Act guarantees a very basic level of water for drinking and hygiene: “Every household should receive the first 6,000 liters of water a month for free.”129 Above that amount, households pay for water based on a rising tariff, i.e., “the more you use, the more it costs.”130 The law also states that no consumer can be without water for more than seven days per year.131 South African courts have acted to enforce these provisions. For instance, in 2011, the Supreme Court of Appeal held that the City of Cape Town had a “constitutional and statutory obligation to supply water to users,” and could not cut off a resident’s water supply because of failure to keep up with payments.132
However, a constitutional provision addressing water does not ensure implementation on the ground. Similar to South Africa, the Zimbabwe Constitution of 2013 provides that “[e]very person has the right to safe, clean, and potable water.”133 The commitment remains aspirational, as Zimbabwe has struggled to provide clean, affordable, and accessible water to its residents. In 2019, Amnesty International estimated that two million Zimbabweans lacked access to water.134 Nevertheless, the constitution and statutes implementing it do provide a mechanism for individuals and communities to raise complaints, and Zimbabwe’s courts have found that the constitutional commitment creates justiciable rights providing a forum for addressing individuals’ concerns.135
Explicit constitutional language is not the only means for enforcing the right to water. In many countries, courts have found a constitutional right to water in the absence of a specific reference to water rights in the constitution. Courts in India, for example, have construed the constitutional “right to life” in Article 21 of the Indian Constitution to include the rights to water and sanitation.136 Similar to the U.S. Constitution’s Due Process Clause, India’s Article 21 states that “[n]o person shall be deprived of his life or personal liberty except according to procedure established by law.”137 Also like the U.S. Due Process Clause, India’s provision has been read to include substantive as well as procedural rights.138 As one among several examples, in 2014, the Bombay High Court held that Article 21’s “right to life” provision barred the government from depriving illegal slum dwellers of water.139
Botswana’s constitution is also silent on the question of water rights, but a court nevertheless found constitutional protection for water in Matsipane Mosetlhanyane v. Attorney General.140 The applicants, members of a community lawfully residing on the Central Kalahari Game Reserve, charged that the government violated their human right to water when it sealed the boreholes on the reserve. Finding for the applicants, the court inferred a human right to water from the provision of the Botswana Constitution protecting individuals from inhumane and degrading treatment.141
In Colombia, the Constitutional Court found that the rights to life, human dignity, health, and a healthy environment, all explicitly set out in the constitution, supported an implicit constitutional right to safe and sufficient water.142 The respective constitutions of Ireland, France, and Belgium have also been construed to protect the right to water under their constitutional “right to life” clauses.143 In Portugal, where the constitution is silent on the right to water, the Supreme Constitutional Court ruled that the constitutionally protected right to health was violated when the government threatened a water shutoff to coerce payment.144 In Argentina, national courts found the right to water as part of the constitution’s right to environmental protection.145
Having identified a constitutional right to water, courts may then be called on to grapple with the complex issues involved in implementing the right. For example, in Mazibuko v. City of Johannesburg,146 the court considered, inter alia, whether South Africa’s statutory minimum allocation of water met the constitutional standard. Applying a reasonableness test to ascertain constitutional compliance, the court upheld the statutory minimums against a challenge from low-income consumers in Soweto.147 In short, the existence of a constitutional right does not require that a government take steps beyond what is reasonable in South Africa, or in United States’ legal terminology, to ignore compelling circumstances limiting water access. Yet the recognition of a constitutional right can create an important baseline for water access. Notably, in South Africa, access to an improved drinking water source grew from 76.6% of the population in 1996 to 90.8% in 2013.148 By 2018, these numbers had slipped somewhat, with only 89% of the population reporting having access to drinking water, but the constitutional baseline remains a lodestar shaping public expectations and government standards.149
IV. Constitutional Rights to Basic Water under United States Law
Constitutional recognition of water is not foreign to the United States. Water is specifically mentioned in several state constitutions. Article XI, Section 7 of the Hawaiʻi State Constitution embodies the public trust doctrine, providing that “[t]he State has an obligation to protect, control and regulate the use of Hawai[ʻ]i’s water resources for the benefit of its people.”150 Article XCVII of the Massachusetts State Constitution asserts that “[t]he people shall have the right to clean air and water.”151 With similar wording, the Pennsylvania State Constitution provides that “[t]he people have a right to clean air, [and] pure water.”152 To date, courts have viewed these provisions through the lens of environmental law rather than applying them to regulate consumption of household water for drinking and hygiene.153 Yet the language of the provisions—for example, the Hawaiʻi Constitution’s specific reference to the “use” of water—seems equally applicable to protection of access to household water. With the growth of environmental constitutionalism more generally, as well as increased awareness of water policy during the pandemic, state courts may soon be asked to consider whether their state constitutions require that states or localities provide basic water access for the benefit of “the people.”
In contrast to these state constitutions, the federal Constitution is silent on water. The Supreme Court has noted the significance of water to human life but has not squarely ruled on whether it has status as a fundamental right.154 To date, the handful of lower courts addressing that question have declined to find such a right.155
However, the door to a fundamental right to basic household water is far from closed. The Supreme Court has found—when compelling circumstances are presented—that the Constitution protects “fundamental rights” that are not specifically identified in the text but reflect important values or actions “implicit in the concept of ordered liberty” and “deeply rooted in this Nation’s history and traditions.”156 In Obergefell v. Hodges, marriage was confirmed to be such a protected activity.157 As a result of the ruling, the state restrictions on same-sex marriage at issue in Obergefell were struck down.158
Other fundamental rights recognized by the Court but not articulated in the Constitutional text include the rights to privacy, to bodily integrity, and to travel.159 Similar to some of the comparative jurisprudence cited above, particularly from India, these substantive rights emerge from the Constitution’s guarantee of procedural protections for life, liberty, and property.160 The jurisprudence of substantive due process remains controversial in some quarters, but several fundamental rights—such as the rights to bodily integrity and travel—are widely embraced as natural and necessary outgrowths of the constitutional text.161
Should the right to water join this list of fundamental constitutional rights? Despite the domestic case law to the contrary, there is strong support for a court to reach such a conclusion in the appropriate case. The fundamental nature of water is well understood and widely accepted.162 Further, the COVID-19 pandemic underscores the critical place of water in American society, while also demonstrating that access to water cannot be adequately protected through the fractured regulations at the local level.163
Recognition of new fundamental rights is not a common occurrence. However, a panel of the Sixth Circuit Court of Appeals recently broke new ground when it considered a claim from Detroit parents that the education being provided by the Detroit public schools violated the fundamental right to a basic minimum education.164 That case, Gary B. v. Whitmer, sets out guideposts that are also relevant to the consideration of water’s constitutional status.
In concluding that the Constitution protects a right to a basic minimum education, the court examined both prongs of the judicial test for finding a fundamental right, i.e., that the proposed right must be (1) implicit in our scheme of ordered liberty, and (2) deeply rooted in our nation’s traditions.165
As to the first inquiry, the court noted the interrelationships between established constitutional rights such as free speech or voting and the newly asserted right to basic literacy.166 Without basic literacy, the court concluded, these other rights were essentially meaningless.167 Lack of literacy strikes at the core of democracy, depriving individuals of a full opportunity to cast a well-informed vote or to engage in robust debate concerning the challenges facing the community.
As to the second prong of the test, the Gary B. court examined the Supreme Court’s jurisprudence on education, noting the many instances in which the Court had acknowledged the critical importance of education in the United States. The idea that a minimum education, such as basic literacy, is “deeply rooted” in our nation’s traditions was supported by cases from Brown v. Board of Education to Plyler v. Doe.168 Though not a fact cited by the Supreme Court, education is also mentioned in the constitution of every state.169
The Gary B. court concluded that a basic minimum education (notably basic literacy, not some higher level of education) was a constitutional right. According to the court:
[T]he right defined in this opinion is narrow in scope. It does not guarantee an education at the quality that most have come to expect in today’s America (but that many are nevertheless denied). Rather, the right only guarantees the education needed to provide access to skills that are essential for the basic exercise of other fundamental rights and liberties, most importantly participation in our political system.170
The court outlined some of the components that could make up a basic minimum education, such as facilities, books, and teachers that could plausibly support acquisition of basic literacy.171 However, the opinion left to the district court a determination of more specific requirements, following fact-finding in the matter.172
The majority’s reasoning in Gary B. is analogous to the standard that could be applied to evaluate the claim of a fundamental right to basic household water for drinking and sanitation. Water’s place within our nation’s scheme of ordered liberty is comparable to that of a basic minimum education.173 To an individual or community lacking the level of water needed for life and health, and struggling with life-threatening thirst or lack of hygiene, the rights to vote, speak, travel, and marry have little meaning.
As to the “deep roots” prong, importantly, while water does not have the same rich legacy of Supreme Court jurisprudence as education, water rights have been considered by the Court multiple times in contexts involving both federal reservations and riparian rights. Scholars have observed that in Winters v. United States, the Supreme Court acknowledged the critical importance of water for life when it recognized that “when the federal government holds natural resources on behalf of a community, it must provide enough water for that community to be sustainable.”174 The Winters doctrine first applied to reservations but has now been extended to other federal lands, such as national parks and monuments.175 In 2017, the Ninth Circuit Court of Appeals recognized that the doctrine extended to groundwater as well as surface water.176 According to the Court, “[w]ater is inherently tied to the . . . ability to live permanently,” and without these water rights, a community’s way of life “would be entirely defeated.”177
Importantly, the “deep roots” needed to support a fundamental right are not only found in case law. Historical examples in which individuals and communities refused to deny critical water access in times of hardship, from the ancient “right to thirst” to the Great Depression’s contrived work programs, contribute to the argument that access to basic household water for drinking and hygiene is a deeply rooted American value.178
The Gary B. decision is also instructive since it recognizes the limits of the fundamental right, even while recognizing it. The Gary B. majority opined that students were entitled only to basic minimum education, not to higher levels of educational attainment.179 Likewise, a right to water may be limited to the basic level that is necessary to support the exercise of other rights and to support the general welfare of the community. South Africa, for example, fulfills the right by providing individuals with free access to basic amounts of water.180
A right to water in the United States would not require that the government provide unlimited, free water to all. Indeed, the international human right to water recognizes that potable water is costly to produce. Under human rights norms, those who can pay for water should pay for it; it is only when an individual cannot pay that a basic amount of water must still be provided without charge as a matter of human rights law.181 Whether one can or cannot pay may require some level of proof of income relative to the cost of household water, but as stated by David Lilienthal, President Franklin Roosevelt’s appointee to the Tennessee Valley Authority:
The question is not whether the consumers are able to pay the rates by sacrificing everything else, but rather whether there is a reasonable choice between spending available income for the utility service at the existing rate or doing without the service and spending the money for another necessity.182
Lilienthal was writing about public utilities such as electricity and gas.183 Presumably with regard to water, the calculus should be even more generous, since it is not feasible to “do without.”
Given the difficulties of defining the scope of a right to water, a court might be tempted to frame it as a negative right. Consistent with many other constitutional rights, this would be a right not to be shut off from basic household water, rather than an affirmative right to receive household water.184 Such a federal constitutional right would bar water shutoffs to individuals who have water service but cannot pay, but it would not require that governments provide more than minimum water service without charge. Further, under this negative rights approach, water authorities would not be obliged to expand water infrastructure to areas of the region that are underserved.185 Such an approach might fit more neatly into our constitutional system of negative rights, though it could provide a disincentive to add infrastructure in low-income communities.
There is one additional aspect of the constitutional text that supports the fundamental right to water: the Preamble’s statement that one of the purposes of the Constitution is to “promote the general Welfare.”186 For many years, the Preamble has been viewed as a nullity,187 despite the basic canon of construction that the Constitution should be read so as to give meaning to all of its words. Recent scholarship has reestablished the Constitution’s Preamble as a source of interpretive guidance, if not substantive rights.188 According to the exhaustive study published by John Welch and James Heilpern, the “general Welfare” clause (which appears in conjunction with the “common defence” clause) reflects the Framers’ concern with community well-being rather than individual welfare.189
The term “general Welfare” has particular resonance as we have come to see access to water for handwashing as a primary means to avoid community spread of COVID-19 or other communicable diseases.190 Individual water access is important not just for the individual, but for general welfare of the community. By emphasizing the community-focused purposes the Constitution is intended to further, the Preamble supports an interpretation of Palko’s fundamental rights test that takes into account the broad implications of water access for the general community, beyond the individual. This was not identified as a factor in Gary B., and perhaps is less pertinent in the context of literacy. In contrast, these community impacts are of critical importance, and constitutional magnitude, when considering the potential right to water.
Conclusion
The COVID-19 pandemic revealed what is at stake in having and enforcing a right to water under United States law. If there were a constitutional right to water, basic household water would be available even to those who are unable to pay. Consumers would not have to live in fear that their water would be completely shut off if they faced financial hardship. Communities would not have to worry that neighbors were unable to engage in basic behaviors promoting public health because they lacked water.
Even before the pandemic, rising water prices were leading to harsh consequences across the country. Individuals on fixed incomes looked for ways to reduce their expenses by not flushing toilets, by not taking medicines, or by refraining from gardening.191 Guaranteeing a basic level of water access, relieving individuals of the stress of worrying that their water would be shut off, would make a significant difference to individual and community well-being and health.
During the Great Depression, water authorities were able to provide temporary employment to household heads who fell behind with their water bills. Other individuals could hope that water authorities would find them sufficiently deserving to merit an extended payment plan or some other accommodation. But something so critical to every individual’s life, and to every community’s general welfare should not be a matter of bureaucratic discretion or largesse. Our constitutional system requires, at the very least, that basic household water for drinking and hygiene not be denied to those who cannot pay.