That sentence just says why we're making a national government (i.e. giving up some of our rights). It does not create some unlimited requirement for governments (especially state) to do whatever they can to promote general welfare, whatever that means. It doesn't even grant unlimited authority to do so. Or really say anything at all except state a very general purpose for why a national government is a sensible thing to have.
> We the People... in order to... [do establish] this Constitution
I disagree. The Preamble explicitly states that the Constitution is for these six things. "in Order to" makes it clear what the ends of the document are, and what they’re meant to serve.
That it doesn’t confer unlimited power is orthodox constitutional law. But the Preamble explicitly states the constitutional purposes that should guide the interpretation and exercise of the powers enumerated. And it doesn’t follow that the purposes it states are legally meaningless. The’re part of the constitutional text and inform how the powers actually conferred by the Constitution are construed. As Story commented:
“One of the best established rules of interpretation, one, which common sense and reason forbid us to overlook, is, that when the object of a power is clearly defined by its terms, or avowed in the context, it ought to be construed, so as to obtain the object, and not to defeat it. The circumstance, that so construed the power may be abused, is no answer. All powers may be abused; but are they then to be abridged by those, who are to administer them, or denied to have any operation? If the people frame a constitution, the rulers are to obey it. Neither rulers, nor any other functionaries, much less any private persons, have a right to cripple it, because it is according to their own views inconvenient, or dangerous, unwise or impolitic, of narrow limits, or of wide influence.”
> The Preamble explicitly states that the Constitution is for these six things.
The Constitution establishes the Federal government. Not state, county, city, municipal governments. It says what the Federal government is for. Not what those other levels of government are for. The Federal government isn't the government that failed to provide clean water in this case; it's not even responsible for providing city water in the first place, city governments are.
Incorporation of the Bill of Rights doesn't extend any powers granted by the Constitution to the Federal government, to state, county, city, etc. governments. It just says those governments (well, the State governments, since the Amendment only explicitly says "States", but other local governments when they are implementing or enforcing State statutes) also have to respect the Bill of Rights when they exercise the powers they already had. The Constitution did not establish those other governments. They were already there.
The Bill of Rights is just the first ten. Incorporation has been extended far further than that. Per the link:
"However, the post–Civil War era, beginning in 1865 with the Thirteenth Amendment, which declared the abolition of slavery, gave rise to the incorporation of other amendments, applying more rights to the states and people over time."
> The Constitution did not establish those other governments.
But it does constrain them. They agreed to that when they ratified the Constitution and joined the United States.
> The Fourteenth Amendment explicitly constrains states
It says states can't make laws that abridge the privileges or immunities of citizens. It does not say states have to provide whatever services citizens would like to have.
If a city chooses to operate a water system, that’s still subject to the Fourteenth Amendment.
The Fourteenth Amendment constrains state and local government action. And the Preamble's "general Welfare" is relevant interpretive context. At the Founding, that meant the safety, prosperity, happiness, and well being of the political community.
So the question isn't whether the Constitution requires cities to provide water, but whether a city that allegedly poisons people through the water system it operates can violate constitutionally protected interests in life, liberty, or bodily integrity.
The city is not a State. The Fourteenth Amendment says that States shall not abridge the privileges and immunities of citizens.
As the court's opinion points out (and as others have pointed out in this thread), there are plenty of other legal remedies that can be sought against a city government that allegedly poisons its people through its water system, including voting them out of office and bringing tort claims against them.
A city is a state actor for Fourteenth Amendment purposes. The Supreme Court has applied the Fourteenth Amendment to municipal action since at least Yick Wo, and municipalities can be sued under §1983 for constitutional violations caused by official policy.
And "you can vote them out or sue in tort" doesn't answer the constitutional question. The availability of other remedies does not make an otherwise unconstitutional government action constitutional.
Also, the Fourteenth Amendment does considerably more than prohibit abridging privileges or immunities. It expressly prohibits states from depriving any person of life, liberty, or property without due process and from denying equal protection.
"nor shall any State deprive any person of life, liberty, or property, without due process of law"
One might argue they're not required to provide water, but I'd argue this means they can't knowingly provide dangerous water laced with a neurotoxin and lie about its safety as in this case.
(And there's an "equal protection of the laws" aspect to "lead in the water supply tends to disproportionately occur in poor communities", too.)
The city is not a State, so that clause would not apply to it. Unless you want to argue that the State of Mississippi was violating the Fourteenth Amendment by not requiring its cities to provide clean water (the article mentions that a few other states have done this). But this suit wasn't against the state.
This is tortured logic that would argue the Fourth Amendment doesn't apply to most police departments in the country and that town school boards could violate the First Amendment and have religious instruction.
States are co-sovereigns with the Feds. Your city is not. Your city's state cannot allow the local jurisdictions under it violate the Constitution either. Your town can't forbid black people from voting for mayor. etc. etc. etc.
> Held: Local units with general governmental powers over an entire geographic area may not, consistently with the Equal Protection Clause of the Fourteenth Amendment, be apportioned among single member districts of substantially unequal population.
> The Equal Protection Clause reaches the exercise of state power, whether exercised by the State or a political subdivision.
Give how vague constitutional clauses have been (ab)used to sneak in legislation through the judicial system (eg. roe v wade, or louisiana v. callais), the last thing we need are even more avenues to sue the government just because the plaintiff doesn't think the government is acting in the way they think is best.
The Preamble isn't vague about what it's doing, though. It's quite clear. It tells us who is establishing the Constitution and expressly states the purposes for which they are establishing it.
Saying that those stated purposes should inform constitutional interpretation isn't a particularly novel idea. Pretending the ratified language at the beginning of the Constitution doesn't matter because taking it seriously might be inconvenient isn't a serious position either.
The possibility that judges can abuse constitutional interpretation is an argument for doing it carefully, not selectively. Or, as Joseph Story put it: "The circumstance, that so construed the power may be abused, is no answer. All powers may be abused."
>The possibility that judges can abuse constitutional interpretation is an argument for doing it carefully, not selectively. Or, as Joseph Story put it: "The circumstance, that so construed the power may be abused, is no answer. All powers may be abused."
You realize much of the constitution is designed to constrain what the government can do, exactly to limit the potential for abuse? Sure, it's all great when you're using the "promote the general welfare" as an excuse to enact medicare for all or whatever, not so great when the other side decides it means abortion needs to be banned (what about the "welfare" of babies).
Can’t say that I follow. What does a king have to do with forming a more perfect Union, establishing Justice, insuring domestic Tranquility, providing for the common defense, promoting the general Welfare, and securing the Blessings of Liberty to ourselves and our posterity?
If you allow justifying government power according to some ambiguous notion of general welfare, then all you need to say is that something promotes general welfare. There is more to the structure of the US system than the preamble to the constitution.
You're conflating purpose with power. "Promote the general Welfare" doesn't create unlimited power. The power comes from the Constitution. The point is that once you are interpreting those powers, the Constitution's stated purposes are relevant to what they mean and how broadly they should be understood.
Nor was "general Welfare" some contentless phrase at the Founding. Protection, safety, prosperity, happiness, and the well being of the political community were all part of the contemporary vocabulary surrounding the public good. As Madison wrote in Federalist 45, “the public good, the real welfare of the great body of the people is the supreme object to be pursued”.
All government powers carry some risk of abuse. But, as Joseph Story put it, “Neither rulers, nor any other functionaries, much less any private persons, have a right to cripple it, because it is according to their own views inconvenient, or dangerous, unwise or impolitic, of narrow limits, or of wide influence.”
Maybe I'm misinterpreting what you meant in your original comment? "This seems to fall under the whole “promote the general welfare” part of the Preamble of the Constitution, though perhaps the court is unaware of it."
The OP is about a federal ruling saying clean water is not a constitutional right, no? And if you're disagreeing you're saying it should be a positive federal right in interpretation if not declaration, implying power of enforcement.
