We're A Common-Law Nation--And Liberals Should Take Advantage Of It

As much as I despair over the persistent increase in climate change, and our seeming inability to do anything about it, I was equally overjoyed when I saw this article, about a group of young people operating under the name of Our Children's Trust and suing federal agencies over their failure to address the effects of climate change.  They are doing so using a novel theory of law:  the "public trust doctrine," a guarantee derived from Roman law that public resources will be safeguarded by government for the benefit of future generations.

Part of the argument being made by the petitioners is that the public trust doctrine is an aspect of sovereignty that is implicit in our Constitution.  Given the roots of the doctrine in Roman law, this may be a bit of a stretch.  Roman law, or civil law in general--that is, a legal system where statutes and not judicial decisions are the final authority--is not explicitly referenced or incorporated into the Constitution.  However, the common law--or "judge-made law," as it is sometimes called--is incorporated into it, explicitly by way of the Seventh Amendment:

          In Suits at common law, where the value in controversy shall exceed twenty dollars, 
          the right of trial by jury shall be preserved, and no fact tried by a jury, shall be 
          otherwise re-examined in any Court of the United States, than according to the rules 
          of the common law.  (Emphasis added.)

It's always puzzled me how conservatives insist that judges in the United States are meant to enforce the law, and not interpret or create it, when the common-law judicial obligation to do so is enscribed in our most basic legal document.  John Marshall, the first Chief Justice of the United States, made that point in his opinion deciding the first major case in constitutional law, Marbury v. Madison:

          It is emphatically the province and duty of the Judicial Department to say what the law is. 
          Those who apply the rule to particular cases must, of necessity, expound and interpret 
          that rule. If two laws conflict with each other, the Courts must decide on the operation of
          each.

So, whether conservatives like it or not, judges due in fact have the power to "make" the law.  And, given the way the Supreme Court has operated under John Roberts as Chief Justice, they don't seem to be too terribly upset about.  I will leave it to the reader to determine whether this reflects simple hypocrisy, or a long-term strategy on the part of conservatives to deny the advantages of the common-law system to their liberal opponents and, ultimately, appropriate it for themselves.

I will, however, say this much:  if it reflects the latter, then liberals should have no hesitation at all to engage in creative litigation, as the petitioners of Our Children's Trust our doing.  There is plenty of room for this, and it may be the case that, in an otherwise deadlocked political system, this type of litigation offers our best chance to make real progress on progressive priorities across the board.  For my part, I would love to see someone argue before the Supreme Court that the Thirteenth Amendment nullifies the Second Amendment, as the latter was only created to protect the slave patrols.  What better way to defeat conservatism than to use its own tortured logic against it?

So, let's get going.  To paraphrase JFK, let us not litigate out of fear, but let us never fear to litigate.  That's how much of our progress has been achieved.  And, today, it may be the best avenue for progress that we have.