A 10–5 en banc ruling in Jackson, Mississippi, says the Fourteenth Amendment does not guarantee safe tap water or honest briefings in a public-health crisis. The opinion is narrow. The argument it leaves behind is not.
On 4 September 2026 the full Fifth Circuit closed a four-year civil-rights case without deciding whether Jackson’s water was safe, whether city officials misled residents, or who should pay for the damage. It decided something colder and more durable: those questions, if they are to be answered at all, will not be answered as constitutional claims.
Key Takeaways by Planet Today
The holding, not the slogan: In Sterling v. City of Jackson, No. 24-60370, the en banc Fifth Circuit voted 10–5 to affirm dismissal of the residents’ 42 U.S.C. § 1983 claims. Judge Kurt D. Engelhardt wrote that alleged deprivation of clean water and “guileless information” was “grievous” and still did “not infringe upon any deeply rooted constitutional right.”
What the court refused to create: two new substantive-due-process rights — freedom from exposure to municipally supplied contaminated water, and a right to truthful information from officials during a public-health crisis. The majority applied the history-and-tradition test from Washington v. Glucksberg and Dobbs v. Jackson Women’s Health Organization.
The live split: The Sixth Circuit, in the Flint case Guertin v. Michigan (2019), allowed bodily-integrity claims over leaded water to proceed. The Fifth Circuit said it was “not bound, nor persuaded.” That disagreement now sits in the open.
What remains open on the ground: tort suits, Safe Drinking Water Act enforcement, the federal receivership that created JXN Water, rate fights, and a fresh proposal that Jackson sell the system. On 10 September 2026 the receiver answered the ruling as a legal question, not a values question.
The implication readers should keep: a constitutional silence is not the same thing as a clean pipe. It is also not the same thing as official permission to lie. It is a statement about which courthouse door is locked.
What the court actually decided
The plaintiffs — Priscilla Sterling, Raine Becker, Shawn Miller and John Bennett — sued in 2022 in the Southern District of Mississippi. They named the City of Jackson; former mayors Chokwe A. Lumumba and Tony Yarber; former public-works directors Kishia Powell, Robert Miller and Jerriot Smash; and Trilogy Engineering Services. The theory was familiar to anyone who followed Flint: officials knew lead was rising in a municipal system, failed to stop it, told people the water was safe, and thereby violated the Fourteenth Amendment’s protection of bodily integrity.
U.S. District Judge Kristi Johnson dismissed the constitutional claims. A three-judge Fifth Circuit panel revived part of the case on 17 November 2025, treating the alleged conduct as severe enough to state a bodily-integrity claim against the city and, for a moment, importing the “state-created danger” doctrine into Fifth Circuit law. The full court vacated that panel opinion on 19 February 2026, heard argument en banc on 12 May, and issued the replacement opinion on 4 September. Judges Leslie Southwick and James Graves recused. The published vote was 10–5.
Engelhardt’s majority — joined by Chief Judge Jennifer Elrod and Judges Edith Jones, Jerry Smith, Priscilla Richman, Don Willett, James Ho, Stuart Kyle Duncan, Andrew Oldham and Cory Wilson — started where recent Supreme Court doctrine tells lower courts to start. Substantive due process is not a spare parts bin. New unenumerated rights require a careful showing that the claimed liberty is “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” The majority said the plaintiffs asked the court to recognize two rights that fail that test. “It is undisputed that the Constitution does not guarantee clean water,” the opinion states. A state, the court added, has no general constitutional duty “to provide substantive services for those within its border absent a special relationship.”
The bodily-integrity cases the plaintiffs cited — forced surgery, non-consensual medical procedures, certain forms of assault by state actors — were treated as a different species. Lead exposure from a mismanaged utility, Engelhardt wrote, is “wholly different.” “We are skeptical that the right to not be harmed by lead-contaminated water fits within the right to bodily integrity, and Plaintiffs point us to no historical tradition or Supreme Court precedent convincing us otherwise.” On the second claim, the court was equally blunt: there is no “constitutional right to truthful information from officials during a public health crisis.” Lying about lead, the majority said, is “a far cry from the state’s physically extracting evidence from a criminal suspect or conducting an invasive medical procedure without consent.”
The closing lines are the ones that travel. “The Constitution does not provide redress for every governmental wrongdoing.” Sympathy, the court said, cannot convert a tort into a constitutional case. Plaintiffs may still sue in tort, elect different officials, or petition legislatures. “We will not expand the Fourteenth Amendment to create novel theories of constitutional liability.” Clarence Webster III, counsel for the city, called the decision “one of the most significant constitutional rulings the Fifth Circuit will issue this year.” Jackson Mayor John Horhn said the city was “pleased” and “remains committed to the health, safety, and well-being of every Jackson resident.”
The dissent that would have opened discovery
Judge Catharina Haynes, a George W. Bush appointee, concurred in part and dissented in part. Judges Carl Stewart, Stephen Higginson, Dana Douglas and Irma Ramirez joined her. Haynes did not write a hymn to a free-standing right to bottled-spring tap water. She wrote a process opinion. At the motion-to-dismiss stage, she argued, the allegations must be taken as true, and those allegations “mirror in various ways one of the worst public health crises in recent American history—the Flint water crisis.” Residents, in her view, had pleaded enough to obtain discovery against the city, including under a state-created-danger theory that ten other circuits have recognized in some form.
That last point is easy to miss in headlines. Haynes was not asking the Fifth Circuit to declare a new national water right. She was asking it not to slam the door before the record existed. The majority answered that no amount of discovery can manufacture a constitutional right the text and history do not contain. Both statements can be accurate at once. One is about pleading. The other is about the catalog of rights.
Related Planet Today reading on how courts draw the line between government power and individual claims: Amish Families Lose Vaccine Exemption Case and FalcoNet Spy Vans: What Texas Police Bought and Why It Matters.
How mass media framed it — and how the other side did
Mainstream coverage clustered around a single sentence: there is no constitutional right to clean drinking water. USA Today, the Guardian, Bloomberg Law, the Clarion Ledger and Mississippi Today all led with that formulation, then added the second holding about official speech. The tone varied. Mississippi Today, the local nonprofit, stayed close to the docket and quoted Engelhardt and Mayor Horhn. USA Today placed the ruling in a national frame and noted that California, Virginia and other states have written water protections into state law even though the federal Constitution has not. The Guardian lingered on Jackson’s long crisis and on the court’s line that “our sympathies cannot be the basis” for converting ordinary claims into constitutional ones. Mother Jones put the Trump-appointed author in the first screen and listed state constitutions — New York’s 2021 environmental-rights amendment, Massachusetts since 1972 — as proof that the federal silence is a choice, not a law of nature.
Legal-center and right-leaning outlets read the same pages as a restraint story. Reason’s Volokh Conspiracy described the court as rebuffing an effort to turn the Fourteenth Amendment into a charter of positive rights. The New American stressed the paired holding on official truth-telling and treated it as a limit on using “public-health crisis” rhetoric to constitutionalize speech by mayors and utility directors. Law360 and Bloomberg Law treated the case as doctrine: history-and-tradition after Dobbs, qualified immunity in the alternative, a published conflict with the Sixth Circuit. All of those descriptions are compatible with the opinion. They are not compatible with one another as morality plays.
Alternative and advocacy commentary, where it appeared, compressed the holding into a darker proverb: the government can poison the tap, lie about it, and the Constitution has nothing to say. That sentence is a fair emotional translation of two doctrinal points. It is not a fair description of the rest of American law. The Safe Drinking Water Act still exists. EPA lead-and-copper rules still exist. State tort law still exists. A federal judge still controls Jackson’s utility through a receivership. Saying the Fourteenth Amendment does not supply a damages action is not the same as saying no statute, no regulator and no jury can ever look at the same facts. Readers who want the proverb should at least keep the rest of the toolbox in view. Readers who want the toolbox should not pretend the constitutional door is open when a 10–5 court just closed it.
For another Planet Today file on public-health claims, official narratives, and what documents actually show, see CIA-NIAID Pact: What New Fauci Documents Actually Show and the water-adjacent laboratory piece Mifepristone Activity Detected in US Tap Water Samples.
The Jackson system the lawsuit described — and the system that exists now
The complaint did not invent a crisis out of weather. Mississippi State Department of Health testing between 2010 and 2013 showed lead climbing in Jackson’s distribution system. The city later staggered through winter-storm failures, a 2022 collapse that left large parts of the capital without reliable pressure, hundreds of boil-water notices, and a pipe network that broke faster than crews could keep up. The 2022 filing landed in that wreckage. Plaintiffs said officials knew the chemistry was wrong, failed to maintain corrosion control, and offered false comfort. Court papers in the related public record have described diagnosed lead poisoning in children in at least one plaintiff household. Those are allegations in a dismissed constitutional case, not findings of fact by the en banc court. The majority never tried the water. It tried the legal theory.
After the 2022 emergency, a federal district judge put the system under third-party management. That structure became JXN Water, run by Ted Henifin with court oversight. The manager’s public line since 2017-era sampling — a line repeated again this week — is that finished water tested by independent, federally certified labs has stayed below the federal lead action level, currently 15 parts per billion, and that JXN Water is in compliance with state and federal drinking-water rules. A Clarion Ledger sampling round in 2026 found measurable lead at some taps, all below the action level, and no E. coli. A separate city sampling cycle reported in The Mississippi Link on 10 September 2026 found 13 exceedances out of 120 residential samples; officials said those hits tracked household plumbing rather than the treatment plants. Those data points can be true together: a plant can meet the rule and a kitchen tap in an old house can still run high. Lead in U.S. cities usually does. The EPA has said for years that there is no known safe blood-lead level in children. The action level is a regulatory trigger, not a health blessing.
Infrastructure stress did not vanish when the constitutional case died. JXN Water’s own quarterly reports still catalog local precautionary boil-water notices tied to repairs, valve work and main breaks. In August 2026 the receiver’s financial plan floated selling the water and sewer systems and proposed further rate increases after a 12 percent hike already approved in February. On 9 September, Mississippi Today reported that proposal in plain language: the man hired to fix the utility now says the city should consider selling it. That is a political and financial fight, not a Fourteenth Amendment fight. It is also the fight the Fifth Circuit told residents they still have. )
Latest development: the receiver answers the court
On 10 September 2026 — six days after the opinion, and the most recent on-the-record reaction in Jackson — Henifin issued a statement carried by WAPT. “The Fifth Circuit answered a legal question, not a values question,” he said. “Whatever the Constitution does or doesn’t require, we still believe every family in Jackson deserves water they can trust — and that belief is what gets our crews out at 2 a.m. and keeps us rigorously testing water throughout our system every week.” He added that the lawsuit described a chapter before the rebuild now underway. “We’re not asking anyone to forget what happened.” WAPT / JXN Water, 10 September 2026.
That sentence is useful because it refuses the false choice the internet prefers. A court can deny a constitutional cause of action and a utility can still treat clean water as an operational duty. A resident can accept the holding and still demand corrosion control, pipe replacement and honest Consumer Confidence Reports. Those demands now run through statutes, contracts, city hall, Congress and Judge Henry Wingate’s receivership docket — not through a new unenumerated right.
Flint, Guertin, and why two circuits walked apart
In 2019 the Sixth Circuit held in Guertin v. Michigan that Flint plaintiffs had plausibly alleged a bodily-integrity violation when officials switched the city’s water source, failed to treat for corrosion, and assured the public the water was fine. That panel called bodily integrity “indispensable,” a “first among equals,” with an “impressive constitutional pedigree.” Jackson’s lawyers asked the Fifth Circuit to follow Flint. The Fifth Circuit quoted Guertin, then declined it. The right to autonomy over one’s person is so fundamental, Engelhardt wrote, that the court was “reluctant to weaken the right by applying it to conduct that would not have violated the Constitution when the Fourteenth Amendment was adopted.” Reason’s recap noted a further Sixth Circuit decision in 2025, Mitchell v. City of Benton Harbor, sitting on the same side of the split.
A circuit split of that kind is how cases climb. It is not a promise they will be heard. After Dobbs, the Supreme Court has been hostile to new substantive-due-process adventures and equally unwilling to treat every catastrophe as a constitutional event. The Fifth Circuit majority wrote as if it expected that audience. The Haynes dissent wrote as if discovery might still change what a later court could see. Neither bloc pretended Jackson’s pipes were a theoretical exercise.
Comparisons to Flint are inevitable and sloppy if they stop at “lead in a majority-Black city.” The legal analog is narrower: did officials create or worsen a danger and then use the prestige of office to keep people drinking? Flint produced criminal cases, a massive civil settlement, and a Sixth Circuit opinion that survived. Jackson produced a federal takeover of the utility, years of boil-water notices, and a Fifth Circuit opinion that says the Constitution is the wrong instrument. Two records. Two circuits. One amendment.
What the Constitution is being asked to do
American constitutional law distinguishes negative rights from positive ones with more severity than dinner-table argument allows. The Due Process Clause stops the state from taking life, liberty or property without due process. It has been read to protect certain intimate decisions and the integrity of the body against direct invasion. It has not been read, in the Fifth Circuit as of last week, to guarantee a quality of municipal service. DeShaney v. Winnebago County (1989) remains the cold star in this sky: the Constitution does not generally require the state to protect people from harm, even when the state knows the harm is coming, unless it has created a special relationship or, in some circuits, a state-created danger. Jackson’s residents argued they were inside that exception. Ten judges said they were not.
That is why the second holding, on official speech, matters as much as the first. Modern government runs on briefings. If every false reassurance in a crisis were a constitutional tort, mayors, health officers and utility directors would litigate their press conferences. If no false reassurance is ever a constitutional tort, the incentive to soothe first and test later stays in place. The Fifth Circuit chose the second risk and said legislatures can choose a different balance. Congress already did, in part, through the Safe Drinking Water Act, public-notice rules, and criminal provisions that catch some lies and miss others. Whether those statutes are enough is a policy argument. The court refused to let the policy argument wear a constitutional coat.
State constitutions tell a different story, and they are allowed to. Mother Jones counted at least nine states with some form of clean-water or environmental-rights language, and more than a dozen countries. New York voters added a right to clean air and water in 2021. Massachusetts has had related language since 1972. Mississippi has not. The federal Constitution is a floor, not a ceiling. Sterling never required the Fifth Circuit to rewrite Mississippi’s charter. It asked a federal court to find a federal right. The court said no.
Planet Today’s nearby files on how far federal and state power now reach — and how courts answer — include DOJ: States Must Report Illegal Immigrants or Lose Welfare Funds and Trump Arch Dig Set to Start as Veterans Seek a Halt.
Lead, law, and the gap between a tap and a right
The science is older than this docket. Lead is a neurotoxin. In children it is associated with lowered IQ, attention problems and other durable harm. In adults it is associated with cardiovascular and renal risk. The CDC and EPA have repeated for a generation that no safe blood-lead level has been identified in children. Corrosion control — keeping treated water from stripping lead out of service lines and household plumbing — is the ordinary engineering answer in older American cities. When that chemistry fails, boiling is the wrong folk remedy for lead. Boiling can reduce some pathogens and can concentrate metals. That is one reason public-notice language in a dual crisis is so easy to get wrong and so costly when it is wrong.
None of that science was on trial in New Orleans on 4 September. The majority assumed the alleged injuries were real enough to call them grievous and still held they were not constitutional. That move will strike some readers as heartless and others as legally adult. Both reactions are about what people want the Constitution to be. The document that was ratified and amended is a limited charter. Expanding it through substantive due process has delivered some protections people now treat as obvious and some adventures later courts retracted. Dobbs made the retraction method explicit. Sterling is what that method looks like when the subject is a water bill instead of a clinic.
Remedies the opinion left standing
Engelhardt listed three doors that remain open. First, tort. State law can still host negligence, fraud and related claims if statutes of limitation and immunity rules allow. Second, elections. Jackson has already changed mayors since some of the conduct alleged in the 2022 complaint. Third, petitions to legislatures and agencies. The Safe Drinking Water Act, EPA grant conditions, Mississippi health regulations and the receivership itself are that third door in working clothes.
There is a fourth door the opinion implies without celebrating: contract and rates. Customers who pay for a municipal service can still fight about what they bought. A separate Fifth Circuit matter this year, Jackson v. City of Jackson, No. 25-60216, dealt with billing and procedural claims around the same broken system and shows how crowded this docket family has become. Winning a water-quality case as a breach of duty is harder than winning it as a morality play. It is also how most utility law actually works.
Selling the system, as JXN Water’s August plan suggested, would move the same pipes into different hands. It would not create a constitutional right. It might create a different set of regulators, bondholders and customers. Residents who distrust the city may welcome a sale. Residents who distrust privatization will not. That argument belongs in City Hall and in Judge Wingate’s courtroom, which is where the Fifth Circuit sent it.
What a careful reader should not confuse
First, “no constitutional right” is not “no legal duty.” Utilities remain bound by federal and state drinking-water rules. Officials remain bound by ordinary fraud and public-records law. The Constitution is silent on many duties that statutes shout.
Second, “the court dismissed the case” is not “the court found the water safe.” Sterling died as a § 1983 action. It did not certify Jackson’s taps.
Third, “officials may lie without violating the Fourteenth Amendment” is not a blessing. It is a jurisdictional statement. Political accountability, journalism, inspectors general and criminal statutes are the remaining checks. They fail often enough that the temptation to constitutionalize them never dies.
Fourth, Jackson is not a metaphor that erases other cities. Lead service lines remain in the ground across the United States. The EPA’s lead-and-copper revisions, state replacement programs, and household filters are the practical story in most ZIP codes. Sterling will be cited wherever a plaintiff tries to turn that practical story into a national right. Defense counsel will quote Engelhardt. Plaintiffs’ counsel will quote Haynes and Guertin. That is how doctrine travels.
The curiosity the ruling does not close
If the Fourteenth Amendment does not reach a municipal poison-and-reassure sequence, what sequence would it reach? The majority’s examples — forced surgery, extraction of evidence from the body, assault — require a hand on a person. A pipe is not a hand. A press conference is not a scalpel. That line will satisfy originalists and enrage people who think modern government acts through systems, not nightsticks. The honest question underneath both reactions is institutional: who do you trust to write the next rule, a court inventing a right, or a legislature that can be voted out after it fails to fund a treatment plant?
Jackson’s history does not make that question easy. Decades of deferred maintenance, a narrow tax base, federal grants that arrived late, and a political culture that spent more energy on blame than on pH are all part of the file. So is the fact that a federal judge finally did what local institutions had not. Receivership is a confession dressed as a remedy. The Fifth Circuit just told residents they cannot convert that confession into a new amendment. They can still read the quarterly reports, show up at rate hearings, test their own taps, and decide whether a sale of the system is rescue or surrender.
For readers who track how public-health infrastructure and government claims interact beyond one American city, see Is the US turning Africa into a quarantine zone? and Cannabis Edibles Impair Driving Hours Later, Study Finds.
Sources on the record
Primary opinion: Sterling v. City of Jackson, No. 24-60370 (5th Cir. Sept. 4, 2026) (en banc). Text via Justia and PDF; docket via CourtListener.
Local report of the ruling: Alex Rozier, “Appeals court upholds dismissal of water lawsuit against Jackson,” Mississippi Today, 4 September 2026.
Doctrinal recap and circuit split: Volokh Conspiracy / Reason, 8 September 2026; Bloomberg Law, 4 September 2026.
National accounts: USA Today, 7 September 2026; The Guardian, 8 September 2026; Mother Jones, 5 September 2026; Clarion Ledger, 8 September 2026.
Current operations and the 10 September response: WAPT on JXN Water; sale proposal in Mississippi Today, 9 September 2026.
Prior panel opinion (vacated): Sterling v. City of Jackson, 159 F.4th 361 (5th Cir. 2025). Flint analog: Guertin v. Michigan, 912 F.3d 907 (6th Cir. 2019). Method cases cited by the majority: Washington v. Glucksberg, 521 U.S. 702 (1997); Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022); DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).
Original source material for this briefing: contemporaneous reporting on Sterling v. City of Jackson, decided 4 September 2026, principally Mississippi Today, 4 September 2026, read against the published Fifth Circuit opinion and follow-up coverage through 10 September 2026.
Disclaimer for fact-checkers: The controlling document is the Fifth Circuit’s 4 September 2026 en banc opinion, not any headline. Mississippi Today is a state nonprofit newsroom and is used here for local docket facts. USA Today, Bloomberg Law, the Guardian, the Clarion Ledger and WLBT/WAPT are mass-market or trade outlets with ordinary institutional slants; Mother Jones and The New American approach the same opinion from opposite ideological chairs. Reason’s Volokh Conspiracy is a legal blog, not a wire service. RT.com is not a source for this article. European and U.S. mass outlets can function as vehicles for official narratives; so can governments and activists. The remedy is the opinion PDF, the docket, and JXN Water’s court-filed reports — not loyalty to a masthead. Nothing in this article is legal advice. Water quality at a given Jackson address is an empirical question for current certified tests, not for a dismissed complaint.
Original article: Fifth Circuit: No Constitutional Right to Clean Water on Planet Today 🚀
Automatically republished from the main blog.