Underneath the streets of Jackson, Mississippi, 1,500 miles of pipes deliver water to roughly 140,000 residents of the state’s capital. At least 100 miles of those pipes are over a century old and contain solid bands of lead every 20 feet.
Lead is a toxic metal that, if ingested, can cause lasting damage to the heart, brain, kidneys, and reproductive organs. And the health risks posed by lead pipes can be exacerbated by the water supply itself: Water sources with low pH levels, like the river that provides much of Jackson’s drinking water, wear away at the pipes’ lining and allow more lead to leach into the water.
In 2014, Willie Bell, the interim director of Jackson’s Department of Public Works, alerted Mayor Tony Yarber that the river’s pH levels were causing a dangerous increase in the amount of lead in the water supply. Bell warned that the city urgently needed to upgrade its corrosion control program, and that the city’s residents were at high risk of lead poisoning.
Yarber did not pass on these warnings to the public. He instead fired Bell and expanded the city’s use of the low-pH river water. As a result, the people of Jackson—more than 80 percent of whom are Black, and a quarter of whom live below the federal poverty line—kept drinking and cooking with and bathing in water that they didn’t know was poisoning them.
In June 2015, the Mississippi State Department of Health found that 22 percent of homes in Jackson had elevated levels of lead in the water, meaning the danger was even more widespread in Jackson than in Flint, Michigan. Still, no one told Jackson residents until early 2016. And even then, city officials downplayed the risks and told the public that the water was safe. “The system is not the issue,” said Yarber at a February 2016 city council meeting. “We are not even close to being Flint.”
Since 2022, Jackson residents have been struggling to get federal courts to recognize the city’s conduct as unconstitutional. In a lawsuit, they alleged that the city had endangered their fundamental right to bodily integrity as well as their right to be protected from state-created dangers, as guaranteed by the Due Process Clause of the Fourteenth Amendment. But in June 2024, the District Court for the Southern District of Mississippi dismissed the case, finding that the residents had not stated viable constitutional claims.
The residents appealed, and in November 2025, a three-judge panel of the Fifth Circuit Court of Appeals issued a ruling that was sympathetic but ultimately unhelpful. Writing for a divided panel, Judge Catharina Haynes agreed that the city’s alleged conduct was “conscience shocking,” “depraved,” and “plausibly violated the Constitution.” However, Haynes also found that the city was entitled to qualified immunity, so the claims should still be dismissed.
Practically speaking, the panel’s decision was a win for the city, since it prevented the case from moving forward. But the city, unsatisfied with a win on qualified immunity grounds, asked the full Fifth Circuit to rehear the case and rule against the residents on constitutional grounds, too.
Last week, in a 10-to-5 vote, the Fifth Circuit granted the city’s request. In its opinion in Sterling v. City of Jackson, the Fifth Circuit held that the residents’ claims must be dismissed—not because the city was entitled to qualified immunity, but because the residents were seeking the recognition of “new” rights that lacked “any foundation in the history and tradition of our Nation.”
The Fifth Circuit’s decision is the latest egregious example of originalism, the idea that the Constitution must mean today the same thing that it purportedly meant when it was originally enacted. For the majority, Judge Kurt Engelhardt wrote that Supreme Court decisions like Dobbs v. Jackson Women’s Health Organization have “recently—and vigorously—admonished lower courts” to hew closely to “history and tradition,” lest they transform the Constitution into a “vehicle by which unelected judges may enact their policy preferences.”
Engelhardt’s opinion elides the fact that elevating history above all else is itself a policy preference: one that robs the Constitution of any vitality as a lasting document. For originalism’s adherents, the Constitution has no bearing on whether the city of Jackson can contaminate residents’ water with lead, deliver the lead-tainted water into their homes, and lie to them about whether the toxic water is safe. If judges aren’t convinced that galling government mistreatment of Black people was a constitutional problem in the past, it is not a constitutional problem in the present, either.
By touting the supposed neutrality of originalism, Engelhardt also obscures its function as a rigged game of historical hide-and-seek. The Jackson residents alleged violations of their due process right to bodily integrity and to be free from state-created dangers. Yet Engelhardt’s opinion reframed the rights they were trying to vindicate as rights “to not be exposed to water that was contaminated as a result of the acts or omissions of public officials,” and to “truthful information from public officials about the presence of contaminants in municipally supplied drinking water.”
When you define the rights at issue as narrowly as possible, it makes it very easy to find that those rights do not exist. Engelhardt quickly concluded that “the Constitution does not guarantee clean water” and that “while truthful information is desirable,” there is no “historical analog” allowing the court to read such a right into the Constitution.
The Fifth Circuit’s opinion wraps by asserting that Jackson residents have options for redress other than the Constitution. According to Engelhardt, residents can try “pursuing tort claims,” “electing representatives who will better manage the public-water system,” and “petitioning their representatives for other remedies.”
In addition to promoting a neutered view of the Fourteenth Amendment, these suggestions are divorced from the reality of being Black, poor, and disenfranchised in Jackson. The city used to be majority-white, but when schools and communities began to desegregate in the 1970s, white people fled. Now, the city doesn’t have the tax base to fund the necessary repairs to its aging water infrastructure. The state government, which is controlled by white Republicans, has refused to fund improvements to Jackson’s water system for decades. And even when the federal government specifically allocates funding to repair water systems in Mississippi, as in the 2022 infrastructure bill, the state repeatedly withholds those funds from Jackson, steering them instead to areas with less need but more white people.
After the Civil War, Congress amended the Constitution so that it would afford substantive protections to all of the country’s residents, regardless of race. Black people in Jackson have been persistently denied those protections. Federal courts had an opportunity to vindicate residents’ constitutional claims. By insisting that constitutional interpretation must be deeply rooted in history, they instead perpetuated a history of racist government abuse.
