Most of the eight HARPS this book identifies are paired, elsewhere in this volume, with a proposed constitutional amendment that gives them a real institution, a funding mechanism, and a court to enforce them.
The right to a high-quality environment, and the physical-safety half of the right to security of person, have so far received only argument, a moral claim about what people are owed, with no institution behind it. A chapter can document what Monsanto did to Anniston, Alabama. It can document the collapse of sperm counts across three continents. It can document a food additive that colored American candy for decades after Europe banned it. None of that changes what happens the next time a company decides whether to test a chemical before selling it. Documentation is not enforcement. This amendment is the enforcement. This Article confines itself to physical and environmental safety; it does not address the separate problem of data privacy and surveillance.
Since 1997, the FDA has allowed food and chemical companies to decide for themselves through a self-funded, self-selected panel of experts, with no requirement to notify the government whether a new ingredient is safe. That pathway has been used to clear an estimated 99 percent of new food chemicals introduced since 2000. Red Dye No. 3 colored American food for decades after Europe banned it and after animal studies linked it to thyroid tumors; potassium bromate remains legal in American bread more than twenty years after the European Union, United Kingdom, Canada, and Japan banned it. In every case, the same pattern repeats: the burden of proof falls on the public to demonstrate harm, years or decades after exposure has already occurred, rather than on the manufacturer to demonstrate safety before the product ever reaches a shelf.
This is not unique to food. The same backwards burden of proof governs industrial chemicals, the endocrine disruptors now linked to a fifty percent drop in sperm concentration across North America, Europe, and Australia since 1973. One principle closes both gaps: nothing enters commerce, no chemical, no additive, no consumer product until the party that profits from it has proven, to an independent reviewer insulated from its funding, that it will not harm the people exposed to it. That is the spine of this amendment.
This amendment creates a single constitutional agency, the Office of Public Safety, consolidating the premarket safety functions currently scattered across the FDA, the EPA, and the Consumer Product Safety Commission. It establishes the premarket burden-of-proof standard described above for food additives, industrial chemicals, and consumer products. It writes minimum clean air and water standards into the Constitution itself, so they cannot be reversed by the next administration the way they have been reversed and re-reversed for fifty years. And it gives ordinary citizens a private right of action, so that enforcement does not depend entirely on whichever administration currently controls the agency.
The most serious objection is cost and delay: premarket review takes time and money, and critics will argue it slows innovation and raises prices. The answer is the one already applied to pharmaceuticals, which face exactly this standard today. A company must prove a new drug is safe and effective before it reaches a patient. Food additives and industrial chemicals are not less consequential than pharmaceuticals; they are simply less regulated, for reasons of history and lobbying rather than logic. A second objection is government overreach into private enterprise. This amendment does not ban any chemical or additive outright. It requires proof of safety before use. The same standard already applied, without controversy, to new cars, new drugs, and new aircraft. The third objection is agency capture, that a consolidated Office of Public Safety could become as compromised as the agencies it replaces. Sections 4 and 5 of this Article answer that directly, borrowing the same independence-by-design approach this volume uses everywhere power must outlast a single administration: a fixed term, cross-branch nomination, and removal only for cause by supermajority vote.
Clean air standards have been written, gutted, and rewritten by four different administrations in the past twenty years. A statute lasts as long as the political coalition that passed it. A constitutional right does not. These chemicals do not wait for the political pendulum to swing back in the public’s favor, they accumulate in bodies every year regulation is delayed. This amendment puts the burden of proof permanently on the side of the party best equipped to bear it and takes that decision out of the hands of whoever wins the next election.
