One of Justice Scalia's pithiest observations about the Constitution was that is says what it says and doesn't say what it doesn't say.
One reason I favor the strategy of waiting for an appointment from the next President is that we know the current occupant of the Oval Office has no intention of appointing a Justice with anything approaching Justice Scalia's depth, discipline, rigor and unyielding fidelity to law.
I got a reminder of just how bizarre a path "make-it-up-as-you-go-along" constitutional law can become when I read this article in the Boston Globe titled, "The constitutional right to a healthier climate."
On Wednesday, a judge in US District Court in Oregon will consider whether a constitutional challenge to federal actions that underwrite fossil fuel emissions may proceed. Brought by youth plaintiffs, and by me, on behalf of future generations, the lawsuit alleges that by permitting...and subsidizing the exploitation, production...and burning of fossil fuels, our government has caused or substantially contributed to the present emergency in which the very viability of a hospitable climate system is at stake. We argue that such federal actions infringe upon the fundamental guarantees of the Fifth Amendment, including the rights to life, liberty, property, and equal protection of the law.
In other words, the claim is that the Constitution not merely accommodates, but commands, fruitcake environmentalism.
I knew I would miss Justice Scalia, but I didn't know it would be this much this soon.
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