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03/14/2021

Anthony Moffa: Constitutional Authority, Common Resources, and the Climate
Michael Ramsey

Anthony Moffa (University of Maine School of Law) has posted Constitutional Authority, Common Resources, and the Climate (Utah Law Review , 2021, forthcoming) (47 pages) on SSRN.  Here is the abstract:

This work sets out to re-examine and challenge the history of the property clause with an eye towards increased congressional reliance on it in the face of daunting threats to our natural environment. No one could seriously question the primary motivations of the Framers, but that does not foreclose the importance of searching for secondary motivations that deepen our understanding of arguably the Constitution’s most explicitly environmental provision. Eugene Gaetke’s work in the 1980’s and Peter Appel’s work twenty years later laid the groundwork for the argument here by pushing back on the originalist argument for a narrow interpretation of Congress’s power under the clause. The argument put forward in this piece completes the picture, making an affirmative case for a fuller, conservationist original understanding, one that acknowledges the historic role of the federal government in preserving the nation’s environment and natural resources.