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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::


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    [::..archive..::]
    ::

    :: Monday, April 19, 2010 ::
    "A case which bubbles over with poetical emotion"

    In his on-going "This day in judicial activism" feature on the Benchmark blog at NRO, Ed Whelan recalls today's anniversary of Sierra Club v. Morton, a sound decision that produced a dissent from the fast-fading Justice Douglas, by then in the "cocktail napkin" phase of his career:
    Dissenting from the Supreme Court’s ruling in Sierra Club v. Morton that the Sierra Club lacks standing to challenge federal actions regarding a ski development, Justice William O. Douglas proposes “the conferral of standing upon environmental objects to sue for their own preservation.” The question of standing “would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded.” Under this rule, these inanimate objects—“valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life”—would be named parties. “The river as plaintiff speaks for the ecological unit of life that is part of it.” The “legitimate spokesmen” in court for the inanimate object would be “[t]hose who have [an] intimate relation with the inanimate object.” “Then there will be assurances that all of the forms of life which [the inanimate object] represents will stand before the court—the pileated woodpecker as well as the coyote and the bear, the lemmings as well as the trout in the streams.”
    Douglas may or may not have known that Gilbert & Sullivan's character Strephon, in IOLANTHE, had beaten him to it by some eighty decades; and that the answer, or part of it, had been given by Strephon's antagonist, the Lord Chancellor:
    LORD CHANCELLOR: Now, sir, what excuse have you to offer for having disobeyed an order of the Court of Chancery?

    STREPHON: My Lord, I know no Courts of Chancery; I go by Nature’s Acts of
    Parliament. The bees – the breeze – the seas – the rooks – the brooks – the gales – the vales – the fountains and the mountains cry, “You love this maiden – take her, we command you!” ’Tis writ in heaven by the bright barbèd dart that leaps forth into lurid light from each grim thundercloud. The very rain pours forth her sad and sodden sympathy! When chorused Nature bids me take my love, shall I reply, “Nay, but a certain Chancellor forbids it”? Sir, you are England’s Lord High Chancellor, but are you Chancellor of birds and trees, King of the winds and Prince of thunderclouds?

    LORD CHANCELLOR: No. It’s a nice point. I don’t know that I ever met it before. But my difficulty is that at present there’s no evidence before the Court that chorused Nature has interested herself in the matter.

    STREPHON: No evidence! You have my word for it. I tell you that she bade me take my love.

    LORD CHANCELLOR: Ah! But, my good sir, you mustn’t tell us what she told you – it’s not evidence. Now an affidavit from a thunderstorm, or a few words on oath from a heavy shower would meet with all the attention they deserve.

    STREPH. And have you the heart to apply the prosaic rules of evidence to a case which bubbles over with poetical emotion?

    LORD CHANCELLOR: Distinctly. I have always kept my duty strictly before my eyes, and it is to that fact that I owe my advancement to my present distinguished position.
    Btw -- RIP John Reed, the D'Oyly Carte's leading exponent of the Lord Chancellor (and Koko, Jack Point, and similar roles); 1916-2010.

    :: David M. Wagner 5:42 PM [+] ::
    ...

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