It is not otherwise to be supposed that the Constitution could intend to enable the representatives of the people to substitute their will for that of their constituents. It is far more rational to suppose that courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter within the limits assigned to their authority.Hamilton saw the judicial role in much broader terms than did Justice Rehnquist in the Vermont Yankee decision. It was Hamilton's view that limitations on federal power to restrict the natural and inalienable rights of the individual were guarded only by a resolute Judiciary:* * *
This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.66
Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.67
As our nation rests in its momentary hiatus from issuing new nuclear plant construction permits, it would be an appropriate time to rethink more than just the design of the light water reactor. We should also consider imposing a new, albeit traditional, test upon all future applications for federal authority to engender random human injury in the public interest.
Where rights to be protected are clearly enumerated, are "so rooted in the traditions and conscience of the nation as to be ranked as fundamental,"68 or are "implicit in the concept of ordered liberty,"69 so that failure to protect them would mark a departure from first principles, the grant of a federal license should be conditioned upon the demonstration of an overriding interest of compelling importance,70 the absence of less damaging alternatives for meeting that interest,71 and some method of limiting or restricting the scope of the excursion and redressing the injustice created.
Technological hazards arise as a consequence of endeavors to satisfy societal needs and wants. Such hazards can sometimes be reduced by changing societal wants, by choosing a different technology to satisfy the wants, or by improving the technology to eliminate the hazard. We should force ourselves to thoroughly examine such alternatives in the future before embarking upon any new governmental endeavors, or putting new wrinkles on old endeavors, which carry transgenerational health impacts.
The effects which we have identified as irreducible and irremediable will not be without some countervailing benefit to future peoples if we seize upon them as unfortunate steps to a lesson learned and modify our behavior accordingly.