Constitutionalism

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Constitutionalism

Constitutionalism is "a compound of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law".

Political organizations are constitutional to the extent that they "contain institutionalized mechanisms of power control for the protection of the interests and liberties of the citizenry, including those that may be in the minority". As described by political scientist and constitutional scholar David Fellman:

Constitutionalism is descriptive of a complicated concept, deeply embedded in historical experience, which subjects the officials who exercise governmental powers to the limitations of a higher law. Constitutionalism proclaims the desirability of the rule of law as opposed to rule by the arbitrary judgment or mere fiat of public officials ... Throughout the literature dealing with modern public law and the foundations of statecraft the central element of the concept of constitutionalism is that in political society government officials are not free to do anything they please in any manner they choose; they are bound to observe both the limitations on power and the procedures which are set out in the supreme, constitutional law of the community. It may therefore be said that the touchstone of constitutionalism is the concept of limited government under a higher law.

Definition

Constitutionalism has prescriptive and descriptive uses. Law professor Gerhard Casper captured this aspect of the term in noting, "Constitutionalism has both descriptive and prescriptive connotations. Used descriptively, it refers chiefly to the historical struggle for constitutional recognition of the people's right to 'consent' and certain other rights, freedoms, and privileges. Used prescriptively, its meaning incorporates those features of government seen as the essential elements of the... Constitution".

Descriptive

One example of constitutionalism's descriptive use is law professor Bernard Schwartz's five volume compilation of sources seeking to trace the origins of the U.S. Bill of Rights. Beginning with English antecedents going back to Magna Carta (1215), Schwartz explores the presence and development of ideas of individual freedoms and privileges through colonial charters and legal understandings. Then in carrying the story forward, he identifies revolutionary declarations and constitutions, documents and judicial decisions of the Confederation period and the formation of the federal Constitution. Finally, he turns to the debates over the federal Constitution's ratification that ultimately provided mounting pressure for a federal bill of rights. While hardly presenting a straight line, the account illustrates the historical struggle to recognize and enshrine constitutional rights and principles in a constitutional order.

Prescriptive

In contrast to describing what constitutions are, a prescriptive approach addresses what a constitution should be. As presented by the Canadian philosopher Wil Waluchow, constitutionalism embodies

the idea ... that government can and should be legally limited in its powers, and that its authority depends on its observing these limitations. This idea brings with it a host of vexing questions of interest not only to legal scholars, but to anyone keen to explore the legal and philosophical foundations of the state.

One example of this prescriptive approach was the project of the National Municipal League to develop a model state constitution.

Constitutionalism vs. Constitution

The study of constitutions is not necessarily synonymous with the study of constitutionalism. Although frequently conflated, there are crucial differences. A discussion of this difference appears in legal historian Christian G. Fritz's American Sovereigns: The People and America's Constitutional Tradition Before the Civil War, a study of the early history of American constitutionalism. Fritz notes that an analyst could approach the study of historic events focusing on issues that entailed "constitutional questions" and that this differs from a focus that involves "questions of constitutionalism." Constitutional questions involve the analyst in examining how the constitution was interpreted and applied to distribute power and authority as the new nation struggled with problems of war and peace, taxation and representation. However,

These political and constitutional controversies also posed questions of constitutionalism—how to identify the collective sovereign, what powers the sovereign possessed, and how one recognized when that sovereign acted. Unlike constitutional questions, questions of constitutionalism could not be answered by reference to given constitutional text or even judicial opinions. Rather, they were open-ended questions drawing upon competing views Americans developed after Independence about the sovereignty of the people and the ongoing role of the people to monitor the constitutional order that rested on their sovereign authority.

A similar distinction was drawn by British constitutional scholar A.V. Dicey in assessing Britain's unwritten constitution. Dicey noted a difference between the "conventions of the constitution" and the "law of the constitution". The "essential distinction" between the two concepts was that the law of the constitution was made up of "rules enforced or recognised by the Courts", making up "a body of 'laws' in the proper sense of that term." In contrast, the conventions of the constitution consisted "of customs, practices, maxims, or precepts which are not enforced or recognised by the Courts" but "make up a body not of laws, but of constitutional or political ethics".

Core features

Magna Carta of England (the "Great Charter") created in 1215 is regarded as one of the greatest constitutional documents of all times.

Fundamental law and legitimacy of government

One of the most salient features of constitutionalism is that it describes and prescribes both the source and the limits of government power derived from fundamental law. William H. Hamilton has captured this dual aspect by noting that constitutionalism "is the name given to the trust which men repose in the power of words engrossed on parchment to keep a government in order."

Moreover, whether reflecting a descriptive or prescriptive focus, treatments of the concept of constitutionalism all deal with the legitimacy of government. One recent assessment of American constitutionalism, for example, notes that the idea of constitutionalism serves to define what it is that "grants and guides the legitimate exercise of government authority". Similarly, historian Gordon S. Wood described this American constitutionalism as "advanced thinking" on the nature of constitutions in which the constitution was conceived to be a "sett of fundamental rules by which even the supreme power of the state shall be governed." Ultimately, American constitutionalism came to rest on the collective sovereignty of the people, the source that legitimized American governments.

Civil rights and liberties

Constitutionalism is not simply about the power structure of society. It also asks for a strong protection of the interests of citizens, civil rights as well as civil liberties, especially for the social minorities, and has a close relation with democracy. The United Kingdom has had basic laws limiting governmental power for centuries. Historically, there has been little political support for introducing a comprehensive written or codified constitution in the UK. However, several commentators and reformers have argued for a new British Bill of Rights to provide liberty, democracy and the rule of law with more effective constitutional protection.

Criticisms

Legal scholar Jeremy Waldron contends that constitutionalism is often undemocratic:

Constitutions are not just about restraining and limiting power; they are about the empowerment of ordinary people in a democracy and allowing them to control the sources of law and harness the apparatus of government to their aspirations. That is the democratic view of constitutions, but it is not the constitutionalist view.... Of course, it is always possible to present an alternative to constitutionalism as an alternative form of constitutionalism: scholars talk of "popular constitutionalism" or "democratic constitutionalism."... But I think it is worth setting out a stark version of the antipathy between constitutionalism and democratic or popular self-government, if only because that will help us to measure more clearly the extent to which a new and mature theory of constitutional law takes proper account of the constitutional burden of ensuring that the people are not disenfranchised by the very document that is supposed to give them their power.

Constitutionalism has also been the subject of criticism by Murray Rothbard, who attacked constitutionalism as being incapable of restraining governments and not protecting the rights of citizens from their governments:

[i]t is true that, in the United States, at least, we have a constitution that imposes strict limits on some powers of government. But, as we have discovered in the past century, no constitution can interpret or enforce itself; it must be interpreted by men. And if the ultimate power to interpret a constitution is given to the government's own Supreme Court, then the inevitable tendency is for the Court to continue to place its imprimatur on ever-broader powers for its own government. Furthermore, the highly touted "checks and balances" and "separation of powers" in the American government are flimsy indeed, since in the final analysis all of these divisions are part of the same government and are governed by the same set of rulers.

Constitutionalism by nations

Used descriptively, the concept of constitutionalism can refer chiefly to the historical struggle for constitutional recognition of the people's right to "consent" and certain other rights, freedoms, and privileges. On the other hand, the prescriptive approach to constitutionalism addresses what a constitution should be. Two observations might be offered about its prescriptive use.

• There is often confusion in equating the presence of a written constitution with the conclusion that a state or polity is one based upon constitutionalism. As noted by David Fellman, constitutionalism "should not be taken to mean that if a state has a constitution, it is necessarily committed to the idea of constitutionalism. In a very real sense... every state may be said to have a constitution, since every state has institutions which are at the very least expected to be permanent, and every state has established ways of doing things". But even with a "formal written document labelled 'constitution' which includes the provisions customarily found in such a document, it does not follow that it is committed to constitutionalism...."
• Often the word "constitutionalism" is used in a rhetorical sense, as a political argument that equates the views of the speaker or writer with a preferred view of the constitution. For instance, University of Maryland Constitutional History Professor Herman Belz's critical assessment of expansive constitutional construction notes that "constitutionalism... ought to be recognized as a distinctive ideology and approach to political life.... Constitutionalism not only establishes the institutional and intellectual framework, but it also supplies much of the rhetorical currency with which political transactions are carried on." Similarly, Georgetown University Law Center Professor Louis Michael Seidman noted as well the confluence of political rhetoric with arguments supposedly rooted in constitutionalism. In assessing the "meaning that critical scholars attributed to constitutional law in the late twentieth century," Professor Seidman notes a "new order... characterized most prominently by extremely aggressive use of legal argument and rhetoric" and as a result "powerful legal actors are willing to advance arguments previously thought out-of-bounds. They have, in short, used legal reasoning to do exactly what crits claim legal reasoning always does—put the lipstick of disinterested constitutionalism on the pig of raw politics."

United States

Main article: Constitutionalism in the United States

Descriptive

Constitutionalism of the United States has been defined as a complex of ideas, attitudes and patterns elaborating the principle that the authority of government derives from the people, and is limited by a body of fundamental law. These ideas, attitudes and patterns, according to one analyst, derive from "a dynamic political and historical process rather than from a static body of thought laid down in the eighteenth century".

In U.S. history, constitutionalism, in both its descriptive and prescriptive sense, has traditionally focused on the federal constitution. Indeed, a routine assumption of many scholars has been that understanding "American constitutionalism" necessarily entails the thought that went into the drafting of the federal constitution and the American experience with that constitution since its ratification in 1789.

There is a rich tradition of state constitutionalism that offers broader insight into constitutionalism in the United States. While state constitutions and the federal constitution operate differently as a function of federalism from the coexistence and interplay of governments at both a national and state level, they all rest on a shared assumption that their legitimacy comes from the sovereign authority of the people or popular sovereignty. This underlying premise, embraced by the American revolutionaries with the Declaration of Independence unites American constitutional tradition.

Both experience with state constitutions before and after the federal constitution as well as the emergence and operation of the latter reflect an ongoing struggle over the idea that all governments in America rested on the sovereignty of the people for their legitimacy.

Prescriptive

Supreme Court of the United States

Starting with the proposition that "'Constitutionalism' refers to the position or practice that government be limited by a constitution, usually written," analysts take a variety of positions on what the constitution means. For instance, they describe the document as a document that may specify its relation to statutes, treaties, executive and judicial actions, and the constitutions or laws of regional jurisdictions. This prescriptive use of Constitutionalism is also concerned with the principles of constitutional design, which includes the principle that the field of public action be partitioned between delegated powers to the government and the rights of individuals, each of which is a restriction of the other, and that no powers be delegated that are beyond the competence of government.

Two notable Chief Justices of the United States who played an important role in the development of American constitutionalism are John Marshall and Earl Warren. John Marshall, the 4th Chief Justice, upheld the principle of judicial review in the 1803 landmark case Marbury v. Madison, whereby Supreme Court could strike down federal and state laws if they conflicted with the Constitution. By establishing the principle of judicial review, Marshall Court helped implement the ideology of separation of powers and cement the position of the American judiciary as an independent and co-equal branch of government. On the other hand, Earl Warren, the 14th Chief Justice, greatly extended civil rights and civil liberties of all Americans through a series of landmark rulings. The Warren Court started a liberal Constitutional Revolution by bringing "one man, one vote" to the United States, tearing apart racial segregation and state laws banning interracial marriage, extending the coverage of Bill of Rights, providing defendants' rights to an attorney and to silence (Miranda warning), and so on.

United Kingdom

See also: Constitution of the United Kingdom

Descriptive

Parliament of the United Kingdom

The United Kingdom is perhaps the best instance of constitutionalism in a country that has an uncodified constitution. A variety of developments in 17th century England, including the Constitutional Monarchy and "the protracted struggle for power between King and Parliament was accompanied by an efflorescence of political ideas in which the concept of countervailing powers was clearly defined," led to a well-developed polity with multiple governmental and private institutions that counter the power of the state.

Prescriptive

Constitutionalist was also a label used by some independent candidates in UK general elections in the early 1920s. Most of the candidates were former Liberal Party members, and many of them joined the Conservative Party soon after being elected. The best known Constitutionalist candidate was Winston Churchill in the 1924 UK general election.

Japan

On May 3, 1947, the sovereign state of Japan has maintained a unitary parliamentary constitutional monarchy with an Emperor and an elected legislature called the National Diet.

Polish–Lithuanian Commonwealth

Descriptive

From the mid-sixteenth to the late eighteenth century, the Polish–Lithuanian Commonwealth utilized the liberum veto, a form of unanimity voting rule, in its parliamentary deliberations. The "principle of liberum veto played an important role in [the] emergence of the unique Polish form of constitutionalism." This constraint on the powers of the monarch were significant in making the "[r]ule of law, religious tolerance and limited constitutional government... the norm in Poland in times when the rest of Europe was being devastated by religious hatred and despotism."

Prescriptive

The Constitution of May 3, 1791, which historian Norman Davies calls "the first constitution of its kind in Europe", was in effect for only a year. It was designed to redress longstanding political defects of the Polish–Lithuanian Commonwealth and its traditional system of "Golden Liberty". The Constitution introduced political equality between townspeople and nobility (szlachta) and placed the peasants under the protection of the government, thus mitigating the worst abuses of serfdom.

Dominican Republic

After the democratically elected government of president Juan Bosch in the Dominican Republic was deposed, the Constitutionalist movement was born in the country. As opposed to said movement, the Anti-constitutionalist movement was also born. Bosch had to depart to Puerto Rico after he was deposed. His first leader was Colonel Rafael Tomás Fernández Domínguez, and he wanted Bosch to come back to power once again. Colonel Fernández Domínguez was exiled to Puerto Rico where Bosch was. The Constitutionalists had a new leader: Colonel Francisco Alberto Caamaño Deñó.

Islamic states

The scope and limits of constitutionalism in Muslim countries have attracted growing interest in recent years. Authors such as Ann E. Mayer define Islamic constitutionalism as "constitutionalism that is in some form based on Islamic principles, as opposed to constitutionalism that has developed in countries that happen to be Muslim but that has not been informed by distinctively Islamic principles". However, the concrete meaning of the notion remains contested among Muslim as well as Western scholars. Influential thinkers like Mohammad Hashim Kamali and Khaled Abou El Fadl, but also younger ones like Asifa Quraishi and Nadirsyah Hosen combine classic Islamic law with modern constitutionalism. The constitutional changes initiated by the Arab Spring movement have already brought into reality many new hybrid models of Islamic constitutionalism.

Originalism

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Originalism

 

Scene at the Signing of the Constitution of the United States by Howard Chandler Christy

In the context of United States law, originalism is a theory of constitutional interpretation that asserts that all statements in the Constitution must be interpreted based on the original understanding "at the time it was adopted". This concept views the Constitution as stable from the time of enactment and that the meaning of its contents can be changed only by the steps set out in Article Five. This notion stands in contrast to the concept of the Living Constitution, which asserts that the Constitution should be interpreted based on the context of current times, even if such interpretation is different from the original interpretations of the document. Originalism should not be confused with strict constructionism.

The idea that judicial review was distinguished from ordinary political process by the application of principles grew to be understood as fundamental to the legitimacy of judicial interpretation. Proponents of originalism argue that originalism was the primary method of legal interpretation in America from the time of its founding until the time of the New Deal, when competing theories of interpretation grew in prominence. Critics of originalism argue that its appeal in modern times is rooted in conservative political resistance to the Brown v. Board of Education Supreme Court decision and opposition to some civil rights legislation.

"Originalism" can refer to original intent or original meaning. The divisions between the theories relate to what exactly that identifiable original intent or original meaning is: the intentions of the authors or the ratifiers, the original meaning of the text, a combination of the two, or the original meaning of the text but not its expected application.

Forms

Originalism is an umbrella term for interpretative methods that hold to the "fixation thesis", the notion that an utterance's semantic content is fixed at the time it is uttered. Two alternative understandings about the sources of meaning have been proposed:

• The original intent theory, which holds that interpretation of a written constitution is (or should be) consistent with what those who drafted and ratified it intended the meaning to be. This view has become largely depreciated among 21st century originalists. Alfred Avins and Raoul Berger (author of Government by Judiciary) were proponents of this view.
• The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have understood the ordinary meaning of the text to be. Antonin Scalia was a proponent of this view, as are Clarence Thomas and Amy Coney Barrett.

As a school of legal thought, originalism can be traced to Robert Bork's "Neutral Principles and Some First Amendment Problems", published in the Indiana Law Journal in January 1971. However, it was not until the 1980s, when conservative jurists began to take seats on the Supreme Court, that the debate really began in earnest. "Old originalism" focused primarily on "intent", mostly by default. But that line was largely abandoned in the early 1990s; as "new originalism" emerged, most adherents subscribed to "original meaning" originalism, though there are some intentionalists within new originalism.

Original intent

Main article: Original intent

The original form of originalism is sometimes called intentionalism, or original intent originalism, and looked for the subjective intent of a law's enactors. One problem with this approach is identifying the relevant "lawmaker" whose intent is sought. For instance, the authors of the U.S. Constitution could be the particular Founding Fathers that drafted it, such as those on the Committee of Detail. Or, since the Constitution purports to originate from the People, one could look to the various state ratifying conventions. The intentionalist methodology involves studying the writings of its authors, or the records of the Philadelphia Convention, or debates in the state legislatures, for clues as to their intent.

There are two kinds of intent analysis, reflecting two meanings of the word intent. The first, a rule of common law construction during the Founding Era, is functional intent. The second is motivational intent. To understand the difference, one can use the metaphor of an architect who designs a Gothic church with flying buttresses. The functional intent of flying buttresses is to prevent the weight of the roof from spreading the walls and causing a collapse of the building, which can be inferred from examining the design as a whole. The motivational intent might be to create work for his brother-in-law who is a flying buttress subcontractor. Using original intent analysis of the first kind, one might decide that the language of Article III of the U.S. Constitution was to delegate to Congress the power to allocate original and appellate jurisdictions, and not to remove some jurisdiction, involving a constitutional question, from all courts. That would suggest that the decision was wrong in Ex Parte McCardle.

According to a 2021 paper in the Columbia Law Review, the Founding Fathers did not include a nondelegation doctrine in the Constitution, contrary to the claims of some originalists. According to the paper, "the Founders saw nothing wrong with delegations as a matter of legal theory."

Problems with intentionalism

However, intentionalism encounters numerous problems when applied to the Constitution. For example, most of the Founders did not leave detailed discussions of what their intent was in 1787, and, while a few did, there is no reason to think that their views should be dispositive of what the rest thought. Moreover, the discussions of the drafters may have been recorded; however they were not available to the ratifiers in each state. The theory of original intent was challenged in a string of law review articles in the 1980s. Specifically, original intent was seen as lacking good answers to three important questions: whether a diverse group such as the framers even had a single intent; if they did, whether it could be determined from two centuries' distance; and, whether the framers themselves would have supported original intent.

In response to this, a different strain of originalism, articulated by (among others) Antonin Scalia, Robert Bork, and Randy Barnett, came to the fore. This is dubbed original meaning.

Original meaning

Main article: Original meaning

Justice Oliver Wendell Holmes argued that interpreting what was meant by someone who wrote a law was not trying to "get into his mind" because the issue was "not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used." This is the essential precept of modern originalism.

The most robust and widely cited form of originalism, original meaning, emphasizes how the text would have been understood by a reasonable person in the historical period during which the constitution was proposed, ratified, and first implemented. For example, economist Thomas Sowell notes that phrases like "due process" and "freedom of the press" had a long established meaning in English law, even before they were put into the Constitution of the United States. Applying this form involves studying dictionaries and other writings of the time (for example, Blackstone's Commentaries on the Laws of England; see "Matters rendered moot by originalism", infra) to establish what particular terms meant. (See Methodology, infra).

Justice Scalia, one of the most forceful modern advocates for originalism, defined himself as belonging to the latter category:

The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.

Though there is evidence that the Founding Fathers intended the Constitution to be like a statute, this fact does not matter under Scalia's approach. Adherence to original meaning is explicitly divorced from the intent of the Founders; rather, the reasons for adhering to original meaning derive from other justifications, such as the argument that the understanding of the ratifiers (the people of the several States at the time of the adoption of the Constitution) should be controlling, as well as consequentialist arguments about original meaning's positive effect on rule of law.

Perhaps the clearest example illustrating the importance of the difference between original intent and original meaning is the Twenty-seventh Amendment. The Twenty-seventh Amendment was proposed as part of the Bill of Rights in 1791, but failed to be ratified by the required number of states for two centuries, eventually being ratified in 1992. An original intent inquiry might ask what the framers understood the amendment to mean when it was written, though some would argue that it was the intent of the latter-day ratifiers that is important. An original-meaning inquiry would ask what the plain, public meaning of the text was in 1992 when it was eventually ratified.

Semantic originalism

Semantic-originalism is Ronald Dworkin's term for the theory that the original meaning of many statutes implies that those statutes prohibit certain acts widely considered not to be prohibited by the statutes at the time of their passages. This type of originalism contrasts with expectations originalism, which adheres to how the statutes functioned at the times of their passages, without any expectation that they would function in any other particular ways.

Justice Antonin Scalia and other originalists often claim that the death penalty is not "cruel and unusual punishment" because at the time of the Eighth Amendment's passage, it was a punishment believed to be neither cruel nor unusual. Dworkin and the semantic-originalists assert, however, that if advances in moral philosophy (presuming that such advances are possible) reveal that the death penalty is in fact "cruel and unusual", then the original meaning of the Eighth Amendment implies that the death penalty is unconstitutional. All the same, Justice Scalia purported to follow semantic originalism, although he conceded that Dworkin does not believe Scalia was true to that calling.

Framework originalism

Supreme Court Justice Antonin Scalia (pictured) was a firm believer in originalism.

Framework Originalism is an approach developed by Jack Balkin, a professor of law at Yale Law School. Framework Originalism, or Living Originalism, is a blend of two principal constitutional interpretive methods: originalism and Living Constitution. Balkin holds that there is no inherent contradiction between these two interpretive approaches—when properly understood. Framework Originalists view the Constitution as an "initial framework for governance that sets politics in motion." This "framework" must be built-out or filled-out over time, successive generations, by the various legislative and judicial branches. This process is achieved, primarily, through building political institutions, passing legislation, and creating precedents (both judicial and non-judicial). In effect, the process of building out the Constitution on top of the framework of the original meaning is living constitutionalism, the change of and progress of law over time to address particular (current) issues. The authority of the judiciary and of the political branches to engage in constitutional construction comes from their "joint responsiveness to public opinion" over long stretches of time, while operating within the basic framework of the original meaning. Balkin claims that through mechanisms of social influence, both judges and the political branches inevitably come to reflect and respond to changing social mores, norms, customs and (public) opinions.

According to Framework originalism, interpreters should adhere to the original meaning of the Constitution, but are not necessarily required to follow the original expected application (although they may use it to create doctrines and decide cases). For example, states should extend the equal protection of the laws to all peoples, in cases where it would not originally or normally have applied. Contemporary interpreters are not bound by how people in 1868 would have applied these words and meanings to issues such as racial segregation or (sexual) discrimination, largely due to the fact the Fourteenth Amendment is concerned with such issues (as well as the fact that the Fourteenth Amendment was not proposed or ratified by the founders). When the Constitution uses or applies principles or standards, like "equal protection" or "unreasonable searches and seizures," further construction is usually required, by either the judiciary, the executive, or the legislative branch. Therefore, Balkin claims, (pure, unadulterated) originalism is not sufficient to decide a wide range of cases or controversies. Judges, he posits, will have to "engage in considerable constitutional construction as well as the elaboration and application of previous constructions." For example, originalism (in and of itself), is not sufficient to constrain judicial behavior. Constraint itself does not just come from doctrine or canons, but also from institutional, political, and cultural sources. These constraints include: multi-member or panel courts (where the balance of power lies with moderate judges); the screening of judges through the federal judicial appointment process; social and cultural influences on the judiciary (which keep judges attuned and attentive to popular opinions and the political will of the people); and prevailing professional legal culture and professional conceptions of the role of the judiciary (which produce social norms or mores). These constraints ensure that judges act as impartial arbiters of the law and to try to behave in a principled manner, as it applies to decision making.

Professor Nelson Lund of George Mason University Law School has criticized Balkin's living originalism theory. Specifically, Lund argues that living originalism could be used to read the 26th Amendment to the United States Constitution in such a way that it allows for an 18-year-old U.S. President (with the argument being that the 26th Amendment implicitly amends the 35-year age requirement for the U.S. Presidency as well as all other age requirements for federal offices to make all of them 18 years). Also, Lund argues that if living originalism could be used to justify a constitutional right to same-sex marriage, then "it would be child's play to construct the Fourteenth Amendment into a shield for polygamy, prostitution, incest (at least among adults), polyamorous marriages, and a variety of other unorthodox sexual relationships." Finally, Lund argues that "[w]hatever one's reasons for accepting Balkin's proposal to marry originalism and living constitutionalism, doing so leaves originalism itself in a condition akin to the legal death that married women experienced under the old rules of coverture."

Related positions

Strict constructionism

According to University of Toledo law professor Lee J. Strang, a conservative advocate for originalism, early versions of originalism ("not the sophisticated, more-fully explicated originalism of today") were used at the Founding up until the 1930s; Strang notes that his claims are "contested in the literature" though.

Bret Boyce described the origins of the term originalist as follows: The term "originalism" has been most commonly used since the middle 1980s, and was apparently coined by Paul Brest in The Misconceived Quest for the Original Understanding. It is often asserted that originalism is synonymous with strict constructionism.

Both theories are associated with textualist and formalist schools of thought; however, there are pronounced differences between them. Scalia differentiated the two by pointing out that, unlike an originalist, a strict constructionist would not acknowledge that he uses a cane means he walks with a cane (because, strictly speaking, this is not what he uses a cane means). Scalia averred that he was "not a strict constructionist, and no-one ought to be"; he goes further, calling strict constructionism "a degraded form of textualism that brings the whole philosophy into disrepute".

Legal scholar Randy Barnett asserts that originalism is a theory of interpretation, not construction. However, this distinction between "interpretation" and "construction" is controversial and is rejected by many nonoriginalists as artificial. As Scalia said, "the Constitution, or any text, should be interpreted [n]either strictly [n]or sloppily; it should be interpreted reasonably"; once originalism has told a Judge what the provision of the Constitution means, they are bound by that meaning—however the business of Judging is not simply to know what the text means (interpretation), but to take the law's necessarily general provisions and apply them to the specifics of a given case or controversy (construction). In many cases, the meaning might be so specific that no discretion is permissible, but in many cases, it is still before the Judge to say what a reasonable interpretation might be. A judge could, therefore, be both an originalist and a strict constructionist—but she is not one by virtue of being the other.

Declarationism

Declarationism is a legal philosophy that incorporates the United States Declaration of Independence into the body of case law on level with the United States Constitution. It holds that the Declaration is a natural law document and so that natural law has a place within American jurisprudence. Its main proponents include Harry V. Jaffa and other members of the Claremont Institute. Some proponents claim that Supreme Court Justice Clarence Thomas is a follower of this school of thought; however, Thomas is more widely considered a member of the strict constructionist school.

In Cotting v. Godard, 183 U.S. 79 (1901), the United States Supreme Court stated:

The first official action of this nation declared the foundation of government in these words: "We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness." While such declaration of principles may not have the force of organic law, or be made the basis of judicial decision as to the limits of right and duty, and while in all cases reference must be had to the organic law of the nation for such limits, yet the latter is but the body and the letter of which the former is the thought and the spirit, and it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence. No duty rests more imperatively upon the courts than the enforcement of those constitutional provisions intended to secure that equality of rights which is the foundation of free government."

Proponents claim that the concept is derived from the philosophical structure contained in the Declaration of Independence and assertion that it was the Declaration that revealed the United States as a new emergent nation, the Constitution creating only the federal government. According to this view, the authority to create the Constitution derives from the prior act of nation-creation accomplished by the Declaration. The Declaration declares that the people have a right to alter or abolish any government once it becomes destructive of their natural rights. The turn away from the Articles of Confederation with the ratification of the Constitution was an action of this sort and so the Constitution's authority exists within the legal framework established by the Declaration. The Constitution cannot, then, be interpreted as though it were the foundation of constitutional law, in the absence of principles derived from the Declaration.

Though philosophically conservative, Declarationists such as Jaffa have been outspoken critics of originalist jurists including Robert Bork, Antonin Scalia, and William Rehnquist, likening them to legal positivists. Bork and legal scholar Lino Graglia have, in turn, critiqued the Declarationist position, retorting that it is single-mindedly obsessive over the Dred Scott decision and resembles a theology rather than a legal doctrine.

Methodology

In "The Original Meaning of the Recess Appointments Clause", Michael B. Rappaport described the methodology associated with the "original meaning" form of originalism as follows:

• "The task is to determine the original meaning of the language ... that is, to understand how knowledgeable individuals would have understood this language ... when it was drafted and ratified. Interpreters at the time would have examined various factors, including text, purpose, structure, and history."
• "The most important factor is the text of the Clause. The modern interpreter should read the language in accord with the meaning it would have had in the late 1780s. Permissible meanings from that time include the ordinary meanings as well as more technical legal meanings words may have had."
• "If the language has more than one interpretation, then one would look to purpose, structure, and history to help to clarify the ambiguity. Purpose, structure, and history provide evidence for determining which meaning of the language the authors would have intended."
  • "The purpose of a Clause involves the objectives or goals that the authors would have sought to accomplish in enacting it. One common and permissible way to discern the purpose is to look to the evident or obvious purpose of a provision. Yet, purpose arguments can be dangerous, because it is easy for interpreters to focus on one purpose to the exclusion of other possible purposes without any strong arguments for doing so."
  • "Historical evidence can reveal the values that were widely held by the Framers' generation and that presumably informed their purposes when enacting constitutional provisions. History can also reveal their practices, which when widely accepted would be evidence of their values."
  • "The structure of the document can also help to determine the purposes of the Framers. The decision to enact one constitutional clause may reveal the values of the Framers and thereby help us understand the purposes underlying a second constitutional clause."
• "One additional source of evidence about the meaning of constitutional language is early constitutional interpretations by government officials or prominent commentators. ... Such interpretations may provide evidence of the original meaning of the provisions, because early interpreters would have had better knowledge of contemporary word meanings, societal values, and interpretive techniques. Of course, early interpreters may also have had political and other incentives to misconstrue the document that should be considered." (Id. at 5–7).

Discussion

Philosophical underpinnings

Originalism, in all its various forms, is predicated on a specific view of what the Constitution is, a view articulated by Chief Justice John Marshall in Marbury v. Madison:

[T]he constitution organizes the government, and assigns to different departments their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments. The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained?

Originalism assumes that Marbury is correct: the Constitution is the operating charter granted to government by the people, as per the preamble to the United States Constitution, and its written nature introduces a certain discipline into its interpretation. Originalism further assumes that the need for such a written charter was derived from the perception, on the part of the Framers, of the abuses of power under the (unwritten) British Constitution, under which the Constitution was essentially whatever Parliament decided it should be. In writing out a Constitution which explicitly granted the government certain authorities, and withheld from it others, and in which power was balanced between multiple agencies (the Presidency, two chambers of Congress and the Supreme Court at the national level, and State governments of the United States with similar branches), the intention of the Framers was to restrain government, originalists argue, and the value of such a document is nullified if that document's meaning is not fixed. As one author stated, "If the constitution can mean anything, then the constitution is reduced to meaninglessness."

Function of constitutional jurisprudence

Dissenting in Romer v. Evans, Scalia wrote:

Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected.

This statement summarizes the role for the court envisioned by originalists, that is, that the Court parses what the general law and constitution say of a particular case or controversy, and when questions arise as to the meaning of a given constitutional provision, that provision should be given the meaning it was understood to mean when ratified. Reviewing Steven D Smith's book Law's Quandary, Scalia applied this formulation to some controversial topics routinely brought before the Court:

It troubles Smith, but does not at all trouble me—in fact, it pleases me—that giving the words of the Constitution their normal meaning would "expel from the domain of legal issues ... most of the constitutional disputes that capture our attention", such as "Can a macho military educational institution dedicated to what is euphemistically called the 'adversative' method admit only men? Is there a right to abortion? Or to the assistance of a physician in ending one's life?" If we should read English as English, Smith bemoans, "these questions would seemingly all have received the same answer: 'No law on that one.'" That is precisely the answer they should have received: The federal Constitution says nothing on these subjects, which are therefore left to be governed by state law.

In Marbury, Chief Justice John Marshall established that the Supreme Court could invalidate laws which violated the Constitution (that is, judicial review), which helped establish the Supreme Court as having its own distinct sphere of influence within the federal government. However, this power was itself balanced with the requirement that the Court could only invalidate legislation if it was unconstitutional. Originalists argue that the modern court no longer follows this requirement. They argue that, since U.S. v. Darby, the Court has increasingly taken to making rulings in which the Court has determined not what the Constitution says, but rather, the Court has sought to determine what is "morally correct" at this point in the nation's history, in terms of "the evolving standards of decency" (and considering "the context of international jurisprudence"), and then justified that determination through a "creative reading" of the text. This latter approach is frequently termed "the Living constitution"; Scalia inveighed that "the worst thing about the living constitution is that it will destroy the constitution".

Matters rendered moot by originalism

Originalists are sharply critical of the use of the evolving standards of decency (a term which first appeared in Trop v. Dulles) and of reference to the opinions of courts in foreign countries (excepting treaties to which the United States is a signatory, per Article II, Section 2, Clause 2 of the United States Constitution) in Constitutional interpretation.

In an originalist interpretation, if the meaning of the Constitution is static, then any ex post facto information (such as the opinions of the American people, American judges, or the judiciaries of any foreign country) is inherently valueless for interpreting the meaning of the Constitution, and should not form any part of constitutional jurisprudence. The Constitution is thus fixed and has procedures defining how it can be changed.

The exception to the use of foreign law is the English common law, which originalists regard as setting the philosophical stage for the US Constitution and the American common and civil law. Hence, an originalist might cite Blackstone's Commentaries to establish the meaning of the term due process as it would have been understood at the time of ratification.

Decline in amphibian populations

From Wikipedia, the free encyclopedia

 

The Golden toad of Monteverde, Costa Rica, was among the first casualties of amphibian declines. Formerly abundant, it was last seen in 1989.

Since the 1980s, decreases in amphibian populations, including population decline and localized mass extinctions, have been observed in locations all over the world. These declines are known as one of the most critical threats to global biodiversity.

Recent (2007) research indicates the reemergence of varieties of chytrid fungi may account for a substantial fraction of the overall decline. A more recent (2018) paper published in Science confirms this.

Several secondary causes may be involved, including other diseases, habitat destruction and modification, exploitation, pollution, pesticide use, introduced species, and ultraviolet-B radiation (UV-B). However, many of the causes of amphibian declines are still poorly understood, and the topic is currently a subject of much ongoing research. Calculations based on extinction rates suggest that the current extinction rate of amphibians could be 211 times greater than the background extinction rate and the estimate goes up to 25,000–45,000 times if endangered species are also included in the computation.

Although scientists began observing reduced populations of several European amphibian species already in the 1950s, awareness of the phenomenon as a global problem and its subsequent classification as a modern-day mass extinction only dates from the 1980s. By 1993, more than 500 species of frogs and salamanders present on all five continents were in decline.

Background

In the past three decades, declines in populations of amphibians (the class of organisms that includes frogs, toads, salamanders, newts, and caecilians) have occurred worldwide. In 2004, the results were published of the first worldwide assessment of amphibian populations, the Global Amphibian Assessment. This found that 32% of species were globally threatened, at least 43% were experiencing some form of population decrease, and that between 9 and 122 species have become extinct since 1980. As of 2010, the IUCN Red List, which incorporates the Global Amphibian Assessment and subsequent updates, lists 650 amphibian species as "Critically Endangered", and 35 as "Extinct". Despite the high risk this group faces, recent evidence suggests the public is growing largely indifferent to this and other environmental problems, posing serious problems for conservationists and environmental workers alike.

Habitat loss, disease and climate change are thought to be responsible for the drastic decline in populations in recent years. Declines have been particularly intense in the western United States, Central America, South America, eastern Australia and Fiji (although cases of amphibian extinctions have appeared worldwide). While human activities are causing a loss of much of the world's biodiversity, amphibians appear to be suffering much greater effects than other classes of organism. Because amphibians generally have a two-staged life cycle consisting of both aquatic (larvae) and terrestrial (adult) phases, they are sensitive to both terrestrial and aquatic environmental effects. Because their skins are highly permeable, they may be more susceptible to toxins in the environment than other organisms such as birds or mammals. Many scientists believe that amphibians serve as "canaries in a coal mine," and that declines in amphibian populations and species indicate that other groups of animals and plants will soon be at risk.

Declines in amphibian populations were first widely recognized in the late 1980s, when a large gathering of herpetologists reported noticing declines in populations in amphibians across the globe. Among these species, the Golden toad (Bufo periglenes) endemic to Monteverde, Costa Rica, featured prominently. It was the subject of scientific research until populations suddenly crashed in 1987 and it had disappeared completely by 1989. Other species at Monteverde, including the Monteverde Harlequin Frog (Atelopus varius), also disappeared at the same time. Because these species were located in the pristine Monteverde Cloud Forest Reserve, and these extinctions could not be related to local human activities, they raised particular concern among biologists.

Initial skepticism

When amphibian declines were first presented as a conservation issue in the late 1980s, some scientists remained unconvinced of the reality and gravity of the conservation issue. Some biologists argued that populations of most organisms, amphibians included, naturally vary through time. They argued that the lack of long-term data on amphibian populations made it difficult to determine whether the anecdotal declines reported by biologists were worth the (often limited) time and money of conservation efforts.

However, since this initial skepticism, biologists have come to a consensus that declines in amphibian populations are a real and severe threat to biodiversity. This consensus emerged with an increase in the number of studies that monitored amphibian populations, direct observation of mass mortality in pristine sites that lacked apparent cause, and an awareness that declines in amphibian populations are truly global in nature.

Potential secondary causes

Numerous potential explanations for amphibian declines have been proposed. Most or all of these causes have been associated with some population declines, so each cause is likely to affect in certain circumstances but not others. Many of the causes of amphibian declines are well understood, and appear to affect other groups of organisms as well as amphibians. These causes include habitat modification and fragmentation, introduced predators or competitors, introduced species, pollution, pesticide use, or over-harvesting. However, many amphibian declines or extinctions have occurred in pristine habitats where the above effects are not likely to occur. The causes of these declines are complex, but many can be attributed to emerging diseases, climate change, increased ultraviolet-B radiation, or long-distance transmission of chemical contaminants by wind.

Artificial lighting has been suggested as another potential cause. Insects are attracted to lights making them scarcer within the amphibian habitats.

Habitat modification

Main article: Habitat destruction

Habitat modification or destruction is one of the most dramatic issues affecting amphibian species worldwide. As amphibians generally need aquatic and terrestrial habitats to survive, threats to either habitat can affect populations. Hence, amphibians may be more vulnerable to habitat modification than organisms that only require one habitat type. Large scale climate changes may further be modifying aquatic habitats, preventing amphibians from spawning altogether.

Habitat fragmentation

Main article: Habitat fragmentation

Habitat fragmentation occurs when habitats are isolated by habitat modification, such as when a small area of forest is completely surrounded by agricultural fields. Small populations that survive within such fragments are often susceptible to inbreeding, genetic drift, or extinction due to small fluctuations in the environment. 

Pollution and chemical contaminants

There is evidence of chemical pollutants causing frog developmental deformities (extra limbs, or malformed eyes). Pollutants have varying effects on frogs. Some alter the central nervous system; others cause a disruption in the production and secretion of hormones. Experimental studies have also shown that exposure to commonly used herbicides such as glyphosate (Tradename Roundup) or insecticides such as malathion or carbaryl greatly increase mortality of tadpoles. Additional studies have indicated that terrestrial adult stages of amphibians are also susceptible to non-active ingredients in Roundup, particularly POEA, which is a surfactant. Although sex reversal in some species of frogs occur naturally in pristine environments, certain estrogen-like pollutants can forcibly induce these changes. In a study conducted in a laboratory at Uppsala University in Sweden, more than 50% of frogs exposed to levels of estrogen-like pollutants existing in natural bodies of water in Europe and the United States became females. Tadpoles exposed even to the weakest concentration of estrogen were twice as likely to become females while almost all of the control group given the heaviest dose became female.

While most pesticide effects are likely to be local and restricted to areas near agriculture, there is evidence from the Sierra Nevada mountains of the western United States that pesticides are traveling long distances into pristine areas, including Yosemite National Park in California.

Some recent evidence points to ozone as a possible contributing factor to the worldwide decline of amphibians.

Ozone depletion, ultraviolet radiation and cloud cover

See also: Climate change

Like many other organisms, increasing ultraviolet-B (UVB) radiation due to stratospheric ozone depletion and other factors may harm the DNA of amphibians, particularly their eggs. The amount of damage depends upon the life stage, the species type and other environmental parameters. Salamanders and frogs that produce less photolyase, an enzyme that counteracts DNA damage from UVB, are more susceptible to the effects of loss of the ozone layer. Exposure to ultraviolet radiation may not kill a particular species or life stage but may cause sublethal damage.

More than three dozen species of amphibians have been studied, with severe effects reported in more than 40 publications in peer-reviewed journals representing authors from North America, Europe and Australia. Experimental enclosure approaches to determine UVB effects on egg stages have been criticized; for example, egg masses were placed at water depths much shallower than is typical for natural oviposition sites. While UVB radiation is an important stressor for amphibians, its effect on the egg stage may have been overstated.

Anthropogenic climate change has likely exerted a major effect on amphibian declines. For example, in the Monteverde Cloud Forest, a series of unusually warm years led to the mass disappearances of the Monteverde Harlequin frog and the Golden Toad. An increased level of cloud cover, a result of geoengineering and global warming, which has warmed the nights and cooled daytime temperatures, has been blamed for facilitating the growth and proliferation of the fungus Batrachochytrium dendrobatidis (the causative agent of the fungal infection chytridiomycosis).

An adult male Ecnomiohyla rabborum in the Atlanta Botanical Garden, a species ravaged by Batrachochytrium dendrobatidis in its native habitat. It was the last known surviving member of its species, and with its death on Sept 28, 2016, the species is believed to be extinct.

Although the immediate cause of the die offs was the chytrid, climate change played a pivotal role in the extinctions. Researchers included this subtle connection in their inclusive climate-linked epidemic hypothesis, which acknowledged climatic change as a key factor in amphibian extinctions both in Costa Rica and elsewhere.

New evidence has shown global warming to also be capable of directly degrading toads' body condition and survivorship. Additionally, the phenomenon often colludes with landscape alteration, pollution, and species invasions to effect amphibian extinctions.

Disease

A number of diseases have been related to mass die-offs or declines in populations of amphibians, including "red-leg" disease (Aeromonas hydrophila), Ranavirus (family Iridoviridae), Anuraperkinsus, and chytridiomycosis. It is not entirely clear why these diseases have suddenly begun to affect amphibian populations, but some evidence suggests that these diseases may have been spread by humans, or may be more virulent when combined with other environmental factors.

Trematodes

Further information: Ribeiroia

 

Trematode cyst-infected Pacific Tree Frog (Hyla regilla) with supernumerary limbs, from La Pine, Deschutes County, Oregon, 1998–9. This 'category I' deformity (polymelia) is believed to be caused by the trematode cyst infection. The cartilage is stained blue and calcified bones in red.

There is considerable evidence that parasitic trematode platyhelminths (a type of fluke) have contributed to developmental abnormalities and population declines of amphibians in some regions. These trematodes of the genus Ribeiroia have a complex life cycle with three host species. The first host includes a number of species of aquatic snails. The early larval stages of the trematodes then are transmitted into aquatic tadpoles, where the metacercariae (larvae) encyst in developing limb buds. These encysted life stages produce developmental abnormalities in post-metamorphic frogs, including additional or missing limbs. These abnormalities increase frog predation by aquatic birds, the final host of the trematode.

Pacific Tree Frog with limb malformation induced by Ribeiroia ondatrae

A study showed that high levels of nutrients used in farming and ranching activities fuel parasite infections that have caused frog deformities in ponds and lakes across North America. The study showed increased levels of nitrogen and phosphorus cause sharp hikes in the abundance of trematodes, and that the parasites subsequently form cysts in the developing limbs of tadpoles causing missing limbs, extra limbs and other severe malformations including five or six extra or even no limbs.

Introduced predators

Main article: Introduced species

Non-native predators and competitors have also been found to affect the viability of frogs in their habitats. The mountain yellow-legged frog which typically inhabits the Sierra Nevada lakes have seen a decline in numbers due to stocking of non-native fish (trout) for recreational fishing. The developing tadpoles and froglets fall prey to the fish in large numbers. This interference in the frog's three-year metamorphosis is causing a decline that is manifest throughout their ecosystem.

Increased noise levels

Frogs and toads are highly vocal, and their reproductive behaviour often involves the use of vocalizations. There have been suggestions that increased noise levels caused by human activities may be contributing to their declines. In a study in Thailand, increased ambient noise levels were shown to decrease calling in some species and to cause an increase in others. This has, however, not been shown to be a cause for the widespread decline.

Symptoms of stressed populations

Amphibian populations in the beginning stages of decline often exhibit a number of signs, which may potentially be used to identify at-risk segments in conservation efforts. One such sign is developmental instability, which has been proven as evidence of environmental stress. This environmental stress can potentially raise susceptibility to diseases such as chytridiomycosis, and thus lead to amphibian declines. In a study conducted in Queensland, Australia, for example, populations of two amphibian species, Litoria nannotis and Litoria genimaculata, were found to exhibit far greater levels of limb asymmetry in pre-decline years than in control years, the latter of which preceded die offs by an average of 16 years. Learning to identify such signals in the critical period before population declines occur might greatly improve conservation efforts.

Conservation measures

See also: Amphibian Ark

The first response to reports of declining amphibian populations was the formation of the Declining Amphibian Population Task Force (DAPTF) in 1990. DAPTF led efforts for increased amphibian population monitoring in order to establish the extent of the problem, and established working groups to look at different issues. Results were communicated through the newsletter Froglog.

Much of this research went into the production of the first Global Amphibian Assessment (GAA), which was published in 2004 and assessed every known amphibian species against the IUCN Red List criteria. This found that approximately one third of amphibian species were threatened with extinction. As a result of these shocking findings an Amphibian Conservation Summit was held in 2005, because it was considered "morally irresponsible to document amphibian declines and extinctions without also designing and promoting a response to this global crisis".

Outputs from the Amphibian Conservation Summit included the first Amphibian Conservation Action Plan (ACAP) and to merge the DAPTF and the Global Amphibian Specialist Group into the IUCN SSC Amphibian Specialist Group (ASG). The ACAP established the elements required to respond to the crisis, including priority actions on a variety of thematic areas. The ASG is a global volunteer network of dedicated experts who work to provide the scientific foundation for effective amphibian conservation action around the world.

The ACAP (Gascon et al 2007), concerned that time and capability were short, recommended that all relevant species be immediately incorporated into ex situ breeding programs. On 16 February 2007, scientists worldwide met in Atlanta, U.S., to form a group called the Amphibian Ark to help save more than 6,000 species of amphibians from disappearing by starting captive breeding programmes. Overall between the call to action in 2007 and 2019 there has been a 57% increase in number of breeding programs, or 77 additional species.

Areas with noticed frog extinctions, like Australia, have few policies that have been created to prevent the extinction of these species. However, local initiatives have been placed where conscious efforts to decrease global warming will also turn into a conscious effort towards saving the frogs. In South America, where there is also an increased decline of amphibian populations, there is no set policy to try to save frogs. Some suggestions would include getting entire governments to place a set of rules and institutions as a source of guidelines that local governments have to abide by.

A critical issue is how to design protected areas for amphibians which will provide suitable conditions for their survival. Conservation efforts through the use of protected areas have shown to generally be a temporary solution to population decline and extinction because the amphibians become inbred. It is crucial for most amphibians to maintain a high level of genetic variation through large and more diverse environments.

Education of local people to protect amphibians is crucial, along with legislation for local protection and limiting the use of toxic chemicals, including some fertilizers and pesticides in sensitive amphibian areas.