Jackson, MS water fight — Jackson, Mississippi residents and supporters hold signs as they march to the Governor’s Mansion September 26, 2022, one of the ongoing water protests. Photo/Eric J. Shelton, Mississippi Today archives.

“The plaintiffs alleged in the original lawsuit that they suffered from various ailments due to exposure to Jackson’s contaminated tap water. The plaintiffs argued that the City, acting under the color of state law, created or exacerbated the dangers to which the plaintiffs were exposed. The plaintiffs also alleged the City knew of the water’s risks but deliberately withheld that information. Both claims together, the plaintiffs argued, created a violation of their substantive due process under the 14th Amendment.”

Editor’s Note: This story was originally published in the Mississippi Free Press here.

Americans do not have a constitutional right to clean drinking water, the 5th U.S. Circuit Court of Appeals ruled on Sept. 4. The decision follows a lawsuit that alleged the City of Jackson’s indifference and negligence with its water system led to several of the plaintiff’s children being diagnosed with lead poisoning after exposure to contaminated water.

“These deprivations, while grievous, do not infringe upon any deeply rooted constitutional right,” Judge Kurt D. Engelhardt said in the accompanying opinion.

The case before the court, Sterling v. The City of Jackson, was filed in 2022 by Jackson resident Priscilla Sterling alongside three other residents amidst the Jackson Water Crisis.

jackson water crisis — Conditions at O.B. Curtis Water Treatment Plant in Jackson, Miss., became dire amid the water crisis in August
2022. Photo courtesy City of Jackson

The plaintiffs alleged in the original lawsuit that they suffered from various ailments due to exposure to Jackson’s contaminated tap water. The plaintiffs argued that the City, acting under the color of state law, created or exacerbated the dangers to which the plaintiffs were exposed. The plaintiffs also alleged the City knew of the water’s risks but deliberately withheld that information. Both claims together, the plaintiffs argued, created a violation of their substantive due process under the 14th Amendment.

Judge Catherina Hayes wrote in her dissent that the City of Jackson introduced lead and exacerbated its presence within the water supply under former Mayor Tony Yarber, misled residents and withheld information regarding the presence of and dangers related to lead in the local water system, forcing plaintiffs and their children to contend with the lifelong effects of lead ingestion.

State-Created Danger

The court majority wrote that the Constitution does not provide redress for every governmental wrongdoing, encouraging plaintiffs to look elsewhere for recourse.

“The Constitution does not provide a remedy for Plaintiffs’ injuries,” Judge Kurt Engelhardt said in the Friday ruling. “But that does not mean they are without a remedy. Plaintiffs may pursue tort claims against Defendants, elect officials who will better manage the water system and provide accurate information to the public, or petition their state and federal legislatures for other remedies.”

The judges argued that the 14th Amendment cannot provide redress for the plaintiffs’ alleged injuries, following a modern Supreme Court advisory for circuit judges to avoid creating “novel theories of constitutional liability.”

But while the court’s majority argued that Americans have no explicit rights to clean water or accurate information from public officials, the dissenting judges questioned why the biggest issue in the case was excluded from any mention in the majority opinion.

United States Court of Appeals for the Fifth Circuit issued an opinion in Sterling v. City of Jackson on Friday, Sept. 4, 2026.

However, those claims were only half of the lawsuit. The lawsuit alleged two due process claims—bodily integrity and state-created danger, Hayes said.

At a press conference on Sept. 15, 2022, Mississippi Department of Health Senior Deputy Jim Craig said some residents of Jackson are exposed to lead in the water system. MFP Photo by Kayode Crown

“Much ink was spilled on the latter of these claims at the panel stage, though, curiously, there is no mention of the state-created danger theory in the en banc majority opinion,” Hayes said in her dissent, questioning her fellow judges. “This is especially confounding because Plaintiffs expressly claimed that they have ‘a clearly established right … to be protected from risks (and) dangers … created and/or caused by persons acting under color of state law.’”

Hayes stressed that 10 of the nation’s 13 circuit courts have adopted a state-created danger doctrine that allows state actors to be held accountable for foreseeable injuries resulting from knowingly placing a citizen in danger.

“In contrast, our court stands practically alone in its decades-long fence-sitting, declining to either adopt or definitively rule out the state-created danger doctrine,” Hayes said in her dissent.

Judges Patrick E. Higginbottom, Dana M. Douglas, Irma Carrillo Ramirez and Carl E. Stewart joined Hayes’ dissent.

While Hayes recognized the Supreme Court’s trend towards constitutional originalism in recent cases—like the Dobbs v. Jackson Women’s Health Organization decision that overturned constitutional protections for abortion—she emphasized that justices have “…unambiguously underscored that ‘Dobbs calls into question neither the doctrine of substantive due process nor the other unexpressed rights that the doctrine protects,’” Hayes said in her dissent.

“[T]he Supreme Court has not displaced the historically long-recognized right to bodily integrity,” Hayes continued. “The Court itself declared in Dobbs that it was not ‘cast(ing) doubt on precedents that do not concern abortion.’”

While five of the judges dissented, their disagreement with the majority opinion was only in-part and focused solely on the state-created danger claim.

“At a minimum, Plaintiffs are entitled to discovery on their sufficiently plausible allegations

that the City violated their constitutional rights, and the proper course is for this case to be remanded to the district court to allow such discovery to occur,” Hayes argued.

Constitutional Originalism

Judge Kurt D. Engelhardt’s logic is based on a trend in U.S. Supreme Court decisions in recent decades of advising courts to “…’exercise the utmost care whenever we are asked to break new ground’ in the realm of substantive due process,” Engelhardt said, explaining his reasoning.

The court’s logic is based in the philosophy of constitutional originalism, constitutional law scholar Ilya Somin told the Mississippi Free Press. Somin teaches law at George Mason University and serves as the B. Kenneth Simon Chair in Constitutional Studies at the Cato Institute.

Constitutional originalism is the idea that the U.S. Constitution should be interpreted through the meaning it had to either the general public, or its authors, at the time of its adoption in 1788.

Following the 1997 Glucksberg decision, “… the (Supreme Court) generally held that you can’t use the due process clause to recognize a right or to protect a right unless the right was deeply rooted in history and tradition and the like, which this one—arguably, at least—would not be,” Somin told the Mississippi Free Press.

The Glucksberg decision came following a series of mid-to-late 20th century Supreme Court decisions that used the due process clause of the 14th Amendment to “extrapolate new rights or rights, at least, not previously recognized or understood… in various previously mostly unanticipated ways,” Somin told the Mississippi Free Press.

The philosophy surrounding constitutional originalism was popularized under late Supreme Court Justice Antonin Scalia, University of Mississippi constitutional law expert Jade Criag told the Mississippi Free Press.

“The theory itself, as a method of constitutional interpretation, is rather new and originated around the 1980s,” Craig told the Mississippi Free Press. “I think originalists will often argue that their method is rooted in the original interpretation of the Bill of Rights, so it’s always been there—but it’s not consistent with how judges have typically analyzed the Constitution or decided what claims would be recognized under the Constitution.”

Living Constitutionalism

Constitutional originalism sits opposite to the philosophy of living constitutionalism, which contends that the Constitution’s interpretation should adapt with modern times without formal amendments and/or that the founding fathers intended the Constitution to be a living document.

Living constitutionalism was the prevailing theory prior to the Glucksberg decision, University of Mississippi constitutional law expert Jade Craig told the Mississippi Free Press.

Jade Craig is an assistant professor of law at the University of Mississippi School of Law in Oxford, Mississippi. Photo courtesy University of Mississippi School of Law