Between a rock and a hard place: constitutional theory and intergenerational equity

Constitutional theory may approach the subject of intergenerational equity from two main and quite different directions. The first is the so-called intergenerational paradox of constitutionalism, which concerns the authority of a constitution-making generation to bind future generations to its political choices through a combination of justiciable constitutional provisions and a relatively rigid procedure of constitutional amendment. The second is a plea to use constitutional law to protect the rights of future generational cohorts or to secure the commitment to sustainable development, given the diagnosed short-termist bias of ordinary processes of collective decision-making. Alas, these two are on an ever-recurring collision course: while the most promising way to dissolve or at least manage the intergenerational paradox is to limit the scope of constitutional choices, particularly when it comes to substantive matters of rights and policy that are deeply divisive in a pluralist society, the short- -termist bias of democratic arrangements implies that intergenerational equity can only be realized through robust constitutional safeguards. In a nutshell, addressing one of the sides of the problem increases the size of the other. I shall argue that the only way out of this dilemma is to think of future generations as an endangered minority for the purposes of judicial review of majoritarian legislation and to conceive an architecture of decision-making that enables the correction of generational externalities.