The jurisprudence of defining Constitutional liberty interests and fundamental rights is among the most emblematic of the American judicial process.  No matter one’s views on the appropriate standards to apply or on the role of the judge in this realm, grappling with fundamental rights has played an important role in expounding upon the values animating the Constitution and American society and has allowed judges to articulate their role in the protection and enforcement of these values.

The Supreme Court’s decision in Loving v. Virginia¹ exemplifies this process and role.  The Court unanimously held that Virginia’s statute that forbade interracial marriage violated the Fourteenth Amendment, spending the majority of its opinion analyzing the issue as a violation of the Equal Protection Clause of the Fourteenth Amendment and finding that the statute must be struck down.

However, the Court did not stop there with an already clear and supported decision.  Instead, it further declared that, in depriving the Lovings of the liberty to marry, the state had violated a fundamental right to marriage.  The Court declared that “[m]arriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”²  In 2015, the Court held that the fundamental right to marriage necessarily extended to same-sex couples in Obergefell v. Hodges.³  In doing so, the Court did not create or even expand a right; rather it recognized that the evolved understanding of the same fundamental right to marriage was characteristic of a nation where new dimensions of freedom become apparent to new generations.⁴

Today, litigants are turning to federal courts in hopes that they translate the increasingly partisan problem of climate change into a fundamental right: the right to a stable and livable climate.⁵  In a landmark case, Juliana v. United States, child plaintiffs asserted that the actions and omissions of the federal government, which increased carbon emissions and endangered the planet, infringed upon the plaintiffs’ fundamental right to a climate system capable of sustaining life in violation of their substantive due process rights.⁶  Juliana and similar lawsuits face an unresolved challenge: they lack a convincing theory for why the Constitution should be interpreted to protect the right to a stable environment.

Recognition of such a right may be “groundbreaking” or “unprecedented;”⁷ yet at the same time, the Supreme Court has noted that “[t]he identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.”⁸  The Constitution, through safeguarding fundamental rights, including unenumerated rights, has room for the recognition of even groundbreaking rights: courts need only apply a long-recognized and well-established standard of fundamental rights recognition.⁹

By examining the judicial process and current rights-recognition jurisprudence in cases like Loving and Obergefell, we can draw conclusions not just about the suitability of recognizing the right to a livable climate as a fundamental right, but also how we might get there through the ‘incremental approach,’ a litigation strategy employing a step-by-step education of the courts that demonstrates this right’s connection to the values animating the Constitution and our understanding of liberty.  The end goal of getting the right recognized requires changing courts’ and judges’ understanding of how vague environmental harms have actual impacts on the individuals of the United States.  Specifically, it requires the understanding that climate change represents a concrete threat to the lives and liberties of individuals, that it is a deprivation caused or culpably facilitated by government policies and activities, and that it threatens the core values of our Constitution and society.

History and precedent remain an obstacle as courts do not consider a stable environment to be a fundamental right that is constitutionally protected under the Due Process Clause of the Fifth Amendment.¹⁰  But as the Juliana court, which was the first to allow plaintiffs to proceed on this fundamental rights theory, noted: “[t]he genius of the Constitution is that its text allows ‘future generations [to] protect . . . the right of all persons to enjoy liberty as we learn its meaning.’”¹¹

To build up a case for this right, a successful litigator must further develop several ideas that fall into three main categories: first, the reality of the deprivations and harms suffered by real people; second, the connection of these harms to governmental action; and finally, how this right fits into theories of right recognition and the court’s role in recognizing fundamental rights.  This paper will proceed by examining important precedential building blocks that address these issues, explore the issues that could be further developed, and attempt to put the blocks together (or at least neatly arrange them) for future litigators.