This week 21 kids stood outside a federal courthouse in Eugene, Oregon to explain why they were suing the United States government. The reasons were varied: a lack of snow for skiing in Oregon, beach erosion in Florida, horses dead from dehydration on a ranch in Arizona. The kids’ attorney, Julia Olson of the environmentalist group Our Children’s Trust, gave an impassioned speech earlier in the courtroom before Federal District Judge Ann Aiken to explain how one Jayden Foytlin (age 13) had lost her home to the floods in Baton Rouge this summer. The cause of all of these tragedies could of course be none other than climate change and the U.S. government was to blame for letting it happen. Furthermore, since the U.S. government had failed to take action the young plaintiffs wanted the Court to order an end to fossil fuels.

The debate over climate change goes on. Now I am not a science teacher so I am not going to revisit the ongoing flaws in linking fossil fuels to global environmental collapse. Rather, as someone who has been  teaching high school social studies teacher for the past 18 years, I was struck by how little these kids know about history and government. The lawsuit shows an astounding lack of understanding on how the separation of powers is supposed to function and what Constitutional rights these kids seem to think they have but, actually do not.

The separation of powers is the foundation of the American political system. Simply put, the Courts interpret laws, the Executive enforces laws, and the Legislature creates laws. Whether or not laws dealing with climate change are passed should be left entirely to state legislatures and the U.S. Congress. The entire basis for this lawsuit is that since Congress has “failed to act”, it is left to Courts to force it to act. We have seen this type of logic before: Obama attempted to justify his executive orders on immigration on the grounds that Congress had “failed to act”. The problem with this is twofold. First, it neglects the reality that Congress is free to choose non-action; citizens displeased with inaction can always vote for new members of Congress. Second, the “failed to act” argument could be used to justify virtually any action the president or courts wish to undertake. Were you hoping Congress would pass a law on the environment, immigration, animal rights, transgender issues, and they did not? No problem, just take executive action if you’re the president or file suit in court if you are not. Congress becomes irrelevant. So what’s the danger? The very reason James Madison argued for separation of powers in the first place is that a system where power is not separated, it is highly vulnerable to corruption. Federal judges are not angels; they have political agendas like the rest of us and cannot be trusted to always set them aside. As Madison explains in Federalist #51, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. “

The kids engaged in this lawsuit have also no understanding of what Constitutional rights they do and do not have. Had the students listened to their government teacher and not a lawyer with green, eco-tinted glasses, then they would know that there are no Constitutional rights at stake in this case. The kids complain in their brief that the government’s actions are violating their 5th and 9th amendment and public trust doctrine rights. The 5th Amendment is a generic appeal to “due process” meaning, in layman’s terms, the government is hurting me for no good reason. It applies in most federal cases -- nothing profound here. The real trouble comes with the 9th Amendment and the public trust doctrine. First off, the public trust doctrine isn’t found in the Constitution. Had these kids been in history class and not in courtrooms these past months they might have heard their world history teacher explain that the public trust doctrine was originally developed by Byzantine emperor Justinian to explain that no one could own the sea. It has since later been applied to rivers, the sky, and space. It was never intended to apply to the entirety of the Earth. If it did apply to the whole Earth then private property would cease to exist. This brings to mind the quote “In this sense the theory of the Communists may be summed up in the single sentence: Abolition of private property” (Karl Marx). Of course, if our budding young Marxists had attended government class, they would also know the public trust doctrine appears nowhere in the Constitution. So how did they manage to slip it into the lawsuit? The 9th amendment. The 9th amendment has that oft-misused text that reminds us that rights not listed in the Constitution may exist. It is easy to see how such as vague phrase can be used, has been used, to claim all sorts of invented rights never intended by the Founding Fathers.

This lawsuit against the government to stop oil drilling for the purpose of stopping climate change is truly a cause for concern, not only because it repeats the tired old phrase of global annihilation just around the corner but because it plays fast and loose with Constitution. By asking the Court to take such a broad, and quite frankly, ridiculous interpretation of our founding document, this lawsuit threatens what truly does matter for these kids’ future. What these kids will benefit from most is a system of checks and balances where rights are found in the Constitution and not manufactured and the separation of powers is preserved by judges that judge and not make laws.