A Climate Constitutionalism

A Climate Constitutionalism
Roger Berkowitz

Esmeralda Colombo turns to Hannah Arendt’s work on law, constitutionalism, and participatory democracy to argue for ways to limit state sovereignty and increase citizen participation in government through work on climate change. She argues: 

This article first explores the status of future generations’ fight for the climate by articulating the solidarity implications of climate change as a common concern of humankind. It argues that solidarity is presently negated by a politics of silence toward the voiceless community, namely future generations, wildlife, and natural resources.[16] Second, the analysis offers a brief overview of the recent constitutionalization trend concerning future generations’ interests in the environment as a meaningful counterweight to the politics of silence. It argues that global environmental constitutionalism helps devise institutions and practices that can offset the politics of silence and help reconcile individuality with collective climate action for future generations. Conversely, human rights law and theories of justice have proven ambivalent and minimally pragmatic for securing future generations. Third, future generations’ fight for the climate has notably come to the fore in climate change litigation, which is found to constitute a proxy for political participation and a catalyst of constitutionalization. In this regard, the article shows how a landmark decision handed down by Germany’s Federal Constitutional Court in April 2021, Neubauer et al v Germany, offers practical ways to counterweigh the politics of silence and increase the political space for future freedoms. Conclusively, the article offers a snapshot of the types of open and fluid institutions and participative practices that could advance freedoms for future generations. It does so by calibrating the underlying values of participation with the entrenched limitations of representative democracies.

Throughout the analysis, the article turns to the thought of political theorist Hannah Arendt to illustrate the potential of legally protecting future generations’ role in fighting for a stable climate through post-sovereign constitutionalism. Ultimately, this article argues that Hannah Arendt provides meaningful insights to counterweigh the accumulation of sovereignty among public authorities to the detriment of future life. The upshot is a possibly citizen-oriented future, where politics accounts for future generations through more participative constitutionalism.