A New Constitutive Commitment to Water

Abstract

Cass Sunstein coined the term “constitutive commitment” to refer to an idea that falls short of a constitutional right but that has attained near-constitutional significance. This Article argues that access to safe and affordable water for drinking, hygiene, and sanitation has attained this status and that national legislation is needed to realize this new constitutive commitment. Following the termination of water to thousands of households in Detroit, residents and community organizations filed an adversary complaint in Detroit’s bankruptcy proceedings seeking a six-month moratorium on the disconnections. The bankruptcy court dismissed the case, accurately finding that “there is no constitutional or fundamental right either to affordable water service or to an affordable payment plan for account arrearages.” The widespread protests and outrage at the Detroit water shutoffs suggest, however, that people perceive access to water as a right. Although affordable access to water for essential needs falls short of a constitutional right, it could implicate substantive due process, which reflects its near constitutional status. An analysis of American history, culture, and law demonstrates how access to water for drinking, hygiene, and sanitation could be protected under the right to life. This Article argues that legislation is needed to implement a new constitutive commitment to water and proposes numerous policy options that would not only make moral and economic sense, but also would ensure that all Americans have affordable access to safe water for drinking, hygiene, and sanitation.