Rediscovering The Genius Of Michael Diamond; Using The Domestic Violence Clause As A Tool For Environmental Protection

Like many of you, I am a news junkie. I am also a law professor and the news always carries something of interest that I can use in my classroom.

It has been impossible to ignore the BP oil spill story. Each day the media reports something new and seemingly unfathomable about the environmental disaster.

When I see pictures of dead animals, tar on beaches, and undersea footage of oil plumes coming out of the seafloor like a volcano, it makes me angry. I shake my head and wonder what it is that I can do about something that seems to be beyond my control.

Each day, the news about the spill indicates increasing devastation. After reading about so much destruction, I needed a distraction. I needed to read something … that was hopeful.

About a year ago, a friend of mine gave me a book by Michael Diamond who is a well respected legal scholar, a realist and an idealist at heart. The book sat in a pile of other books that I had been meaning to read until two weeks ago.

I looked down and saw Diamond’s book on top of the pile. The book title ‘If You Can Keep It: A Constitutional Roadmap to Environmental Security’ screamed at me. Elated, at the hope suggested in the title, I picked up the book. Like a great lover, a book can be a source of comfort and inspiration.

Diamond’s book delivered. It is the real deal.

The thrust of his book, ‘If You Can Keep It,’ provides ‘a roadmap for our environmental survival provided by the framers of the Constitution who knew, in the end, we would be our own worst enemy.’ (The quote is from John MacArthur’s, book review in The Townsend Letter for Doctors and Patients, April, 1999. MacArthur is a historian and a science writer specializing in the human brain.).

Diamond’s plainspoken argument is that our government has a Constitutional obligation to protect the people from environmental harms.

In Article IV, section four of the US Constitution you will find this language:
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

The “Legislature” means a state legislature. “Executive” means the state’s governor. And “State” means, according to settled legal cases, the people of that state. So, quite simply put, the federal government has an affirmative obligation to protect the people of every state against conditions that amount to domestic violence.

Without question, in this 21st century, environmental harms easily qualify as conditions of domestic violence. Conditions of environmental domestic violence have put our health and, indeed, our survival on this planet into question.

Traditionally, there has been a deep association with ‘original intent’ theory and the political right. One of the primary conservative talking points has been to consider the Constitution in light of the original meaning of the words in the Constitution. This is commonly known as ‘original intent’ theory.

Diamond satisfies conservatives with his argument that the founding fathers had a clear understanding of the meaning of the phrase ‘domestic violence.’ James Madison’s contemporaneous notes make clear that the framers specifically opted for generic language in the domestic violence clause in order to create a living Constitution; one that would help us in a future, the details of which they knew they could not foresee. They understood that we were fully capable of creating the conditions of our own demise and chose this language so that the great guarantee of Constitutional protection against self harm would always be available to the people of this country. Accordingly, they fashioned a phrase that would provide comprehensive protection if and when that peril might arrive. The framers understood the wisdom of using generic language.

Liberals tend to reject the basic premise of the argument proposed by the originalists. The left has been consistent in their view that even if were possible to understand the framers intent, the ideas and concepts embedded in the Constitution are timeless. Their perspective is that the Constitution should be read in light of evolving standards; that it is a living and breathing document. To those on the left, it is clear that the Constitution requires that people shall be protected by the government against all forms of invasion or domestic violence.

Today, there can be little doubt that protection against invasion or domestic violence means that the government must protect the people from those actions which cause harm to their living environment. All necessary public health initiatives have to be implemented and strategies for planetary survival have to be put in place to protect our environment.

Diamond’s work really moved me in a way that is difficult to articulate. What I find so compelling about Diamond’s book is that he manages to please those on the left as well as the right. I cannot think of another modern political writer who has been able to bridge the gap between the two extremes and still satisfy those in the middle who are clamoring for a restoration of grounded rationality to the political landscape of environmental protection.

In Luther v. Borden (1849), the United States Supreme Court held the creation of republican forms of government and the control of domestic violence were matters of an essentially political nature committed by the Constitution to the other branches of government. The federal government has exercised this political discretion and has authorized Federal power to provide the states assistance to deal with conditions of domestic violence even without state requests

You do not have to be conservative or liberal to love the environment. Those who desire a better quality of life understand the power of environmental protection. Environmental protection is not limited to cleaning the oil out of the water. Environmentalists understand that we need to address the massive harms caused by the proliferation of chemicals that have taken root as necessities for the conspicuous and not so conspicuous consumer.

It is time for both sides of the spectrum to rediscover the genius in Michael Diamond’s work. I urge you all to read this book and talk with your State Legislators. Please demand that they begin calling on the Federal Government to protect us and the environment before it is too late. Wake now, discover!

Michael has started a Facebook page and would welcome your participation. If you are interested, please join his group


Michael Diamond - The Domestic Violence Clause

For more information, please visit his webpage


http://www.domesticviolenceclause.org

If you prefer to email, you will be able to reach him at the following email address:

michaeldiamond at Comcast dot.net