Who Will Represent the Liberty Of Our Posterity?

By Nathan Descheemaeker, 5/13/23

In response to the youths bringing climate change litigation in the case of Held v. The State of Montana, it is necessary to bring the flip side of the coin regarding the youth in the State of Montana and the issues they will face in their future. I’m not talking about fires, drought, or severe weather which man has always encountered and endured. I’m talking about the significant impacts that are, and will continue as a result of whole of government, whole of economy, executive climate policy objectives which has transformative effects on economic and political process which threatens the future generations capacity for self-government guaranteed in the state constitution.

As for ranchers, farmers, and other resource producers who provide the fundamental goods and services taken for granted within the quiet comfort of a suburban home, we face many uncertainties, unpredictable weather, unpredictable breakdowns etc.. One thing that is predictable is that if the direction of law and government towards despotic and arbitrary rule remains unchecked the last vestiges of liberty of one’s person and one’s property, the right to enlightened self-government upon an objective base will be impossible. If the means of production (capital) is no longer aggregated among many individuals employing themselves independently in the market, the inevitable result is consolidation of the means of production which history shows us the state becomes the sole employer and the old saying “he who does not work does not eat,” changes to “he who does not obey does not eat.”

“If the owner may do with his property only that which is prescribed to him, what directs the national economic activity is not property but that prescribing power. . . This merely means that a given condition of social production is to be preserved, even though it would vanish under private property.” (Mises, 1981)

The state in the form of the Judiciary, the Legislature, or the executive which seeks to control and dictate economic activity poses a far greater threat to the liberties of the individual, without which a clean and healthful environment becomes a moot point. It is by the separate government branches playing their limited enumerated role to preserve the life, liberty and property of the individual, that accomplishes the purpose for which governments are instituted among men. The late Justice Scalia said, “As a practical matter, he who controls my economic destiny controls much more of my life as well.”

“I know no society, today or in any era of history, in which high degrees of intellectual and political freedom have flourished side by side with a high degree of state control over the relevant citizen’s economic life. The free market, which presupposes relatively broad economic freedom, has historically been the cradle of broad political freedom, and in modern times the demise of economic freedom has been the grave of political freedom as well.”  (Scalia, p.180 Economic Affairs as Human Affairs)

In order to enjoy self-government, one needs legal protections of private property rights and stable regulatory frameworks enabling private investment in our natural resource industries which our laws have always, and rightfully so, provided for. But this is what these climate justice youth are seeking to upend, claiming the state’s legislative policy allowing responsible fossil fuel development violates their constitutional right to a clean and healthful environment. These are highly conjectural claims being propagated, seeking the solution in asking the courts to disregard legislative prerogatives and robbing the consumer of his choice by prescribing what economic activity is allowed based on the grievance of a group of youths.  

If people believe that hamstringing our fossil fuel industries will mean that fires will cease, and severe weather will subside, they will be woefully disillusioned. These phenomena happened to a lesser or greater extent before industrialized civilizations existed, and if the redistributors succeed in dismantling industrialized civilization the fires will persist as they did before, and as data from the National Interagency Fire Center (NIFC) below shows, they may persist to a greater extent than today.

The Climate change litigation brought by these kids arguing for the right to a clean and healthful environment as justification to eradicate our carbon-based industries will find they are ripping the material foundation from under their feet which alone provides the leisure to enjoy a clean and healthful environment. Forget a clean and healthful environment. No one will have the leisure to enjoy such things when all your time and energy goes to trying to survive in a place of subsistence living. This is plainly evident in many countries where private property and private investment in natural resources accompanied with self-government is lacking. There you will find the environment suffers, and so do the people who live in such a system.

So, what about all the other young people in the state of Montana who are guaranteed in the Montana Constitution to a system of self-government which directly implies a free-market economy which many of our counties have policies to foster in order to secure self-determination. The doctrine of in para materia requires that a body of law is to be looked at in its entirety. Justice Frankfurter once said, “Statutes cannot be read intelligently, while the eye is closed to affiliated statutes.” You cannot use one instrument of the constitution to eradicate another instrument of the constitution without dismantling the structure to the ruin of public liberty.

With this said the youth in this state have far greater standing regarding the damages resulting from the failure of the executive branch to accurately assess the true cost of government policies associated with climate policy objectives. This along with the out-of-control government spending, subsidizing favored industries to benefit from green projects has extensive impacts on the market. Nicolai Tangen, chief executive of the world’s largest sovereign wealth fund explained that “companies benefitting from economically ineffective and inefficient projects through applying for green subsidies has fundamentally flipped free-market principles on their head, an arrangement that is sure to invite economic chaos.”

This kind of coercive influence in the markets is a gross obstruction of the otherwise broad economic freedom which has always served as a basis for broad political freedom necessary for the republican form of government guaranteed to the States in Article IV of the U.S. Constitution. The late Supreme Court Justice Antonin Scalia noted in a speech at the Cato Institute conference on Economic Liberties and The Judiciary in 1984 stating:

“We (the court) will ensure that the executive does not impose any constraints upon economic activity which Congress has not authorized; and that where constraints are authorized the executive follows statutorily prescribed procedures and that the executive (and much more rarely, Congress in its prescriptions) follows constitutionally required procedures.”

It has become evident that the court has not ensured that the executive does not impose any constraints upon economic activity without express delegation. The timetables and targets expressed in numerical terms for de-carbonization and the associated international commitments have not been approved by representatives accountable to the electorate, and is currently impacting individual citizens, homes, businesses and governments with the inflationary result of pumping dollars into the economy while regulating the material conversion of resources for consumption, creating high demand and too little commodity driving up costs across the board. And all this being done on purpose to target and destroy traditional industries which have consistently provided stable rates and reliable energy to ratepayers and consumers. Reliability of energy and other necessary goods and services are becoming a thing of the past and culminates in what could be called a regulatory taking of the entire country.

The lack of disclosure on the part of the federal government relating to the implications of accomplishing such goals as Net-Zero by 2050 with the extensive international guidelines to be followed is in violation of the primary intent of the rule of law and due process which employ the essentials of public scrutiny, without which the individual citizen is left exposed to unrestrained power. Where else would the injunction of the judiciary be more important than the preservation of fundamental principles as enumerated by compact in the Federal and State Constitutions and the Declaration of Independence from which they stand. Preserving the structure of our system is the most pertinent importance for preserving the rights of persons.

If the Executive cannot prove without a reasonable doubt that the current inflation, supply chain shortages, and other impacts is not in part a result of non-delegated executive policy and rules touching vast sectors of the economy (whole of government, whole of economy EO 14008) resulting in transformative effects on political process and social relations, the individual citizen proves damage to his property and well-being as a result of unconstitutional process.

Nathan Descheemaeker

Nathan and his family raise registered feeder calves in Montana, and he is a Senior Research Specialist and Policy Analyst specializing in federal and local government administrative procedures, land and natural resource policymaking, and local governmental relations.