LA Times Global Warming Denier: “If the Framers Didn’t Envision Global Warming, then Dealing with it is Unconstitutional.”

There is a really dumb version of the judicial doctrine of “originalism” that goes something like this: “If the Framers didn’t imagine something happening at the time of the original drafting of the Constitution, then addressing that thing must be unconstitutional.” (CAC’s better method for preserving constitutional accountability is explained here.)

A perfect illustration of this widely-ridiculed approach to constitutional interpretation is Tuesday’s op-ed by LA Times columnist Jonah Goldberg, who views last week’s finding by the EPA that greenhouse gases endanger public health and welfare as “disturbing to people who believe in democratic, constitutional government.” As Goldberg correctly notes, the finding will allow the EPA to regulate greenhouse gases under the Clean Air Act without waiting for further action from Congress – a step that was effectively mandated by the Supreme Court in Massachusetts v. EPA.

However, after getting this one fact straight, Goldberg marches headfirst into La-La Land with the rest of his article:
So the government bureaucracy is on its way to strong-arming the economy in ways Congress never imagined when it passed the Clean Air Act in 1970. Or the president has suddenly gained sweeping new powers over American life, in ways never imagined by Congress or the founders, and despite the fact that these new powers were never put before the voters.
There are way too many flaws in Goldberg’s article to address all of them here, so let’s just address the specific flaws contained in this one statement.

First, while it is certainly the case that the horse-and-buggy-driving Founders were not envisioning greenhouse gas emissions from automobiles or anything similar when they wrote and ratified the Constitution, what Goldberg fails to mention is that they specifically endowed Congress with the power to regulate commercial matters that affect more than one state. Air pollution and climate change are, in fact, classic examples of the type of problem the Framers had in mind when they drafted the Commerce Clause of the Constitution — problems that no state government can solve on its own and that necessarily require coordinated, national regulation. Congress thus unquestionably had the constitutional authority to enact the Clean Air Act.

Second, while it may be the case that Congress did not have greenhouse gases specifically in mind when it drafted and adopted the Clean Air Act in 1970, Goldberg fails to note that Congress purposely chose not to specify the list of air pollutants it wanted regulated under the Act, precisely because it realized new types of pollutants and air quality problems would arise in the future. Much as the Framers did when they were writing a Constitution intended to serve the American people in perpetuity, Congress, in creating the Clean Air Act, did not seek to create a rigid framework that ignored the possibility of future “unknowns.” Rather, it explicitly gave the Executive Branch the authority – indeed, the obligation — to determine when an air pollutant (which Congress itself defined) endangered public health and to go forth and regulate it.

Moreover, in Massachusetts v. EPA, the Supreme Court unequivocally held that greenhouse gases are pollutants subject to regulation under the Clean Air Act. Goldberg attempts to undermine this fact by his pejorative and irrelevant claim that the Supreme Court is the “least democratic branch of government.” Apart from the fact that Supreme Court justices are nominated by elected presidents and confirmed by elected Senators, in ruling in Massachusetts v. EPA, the Court was doing nothing more than fulfilling its constitutional duty to interpret the law. And the Court interpreted the Clean Air Act according to its plain terms, precisely as Congress and the people who elected those representatives would have wanted.

As for the popularity of dealing with climate change, it’s worth noting something else that Goldberg fails to address: the American people voted overwhelmingly in November for the presidential candidate who vowed to regulate greenhouse gases.

Goldberg insultingly ends his piece with the assertion that elected representatives in Congress who support the EPA’s finding must not “take their oaths of office very seriously.” What’s really hard to take seriously is Goldberg’s piece. The reality is that when Senators such as Barbara Boxer (D-CA) “call on the EPA to take all steps authorized by law to protect our families,” they are upholding the rule of law.

Jonah Goldberg is entitled to his policy views on global warming, but until he brushes up on our Constitution, he should really leave the Founders out of his rants.

Cross-posted at Warming Law.

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