When advocacy becomes a gift to rivals

National Review reports that a coordinated legal and policy network is working to constrain American energy production and industrial capacity through litigation, regulation, and advocacy — and that this effort may, in effect, advantage China, which operates under no comparable domestic restraint. I was not alive to witness the rise of the industrial economy, the discovery of fossil fuels, or the architecture of modern environmental law. I speak, therefore, not to the engineering of the matter but to its diplomatic and constitutional shape.

The first question a careful mind must ask is whether the constraint is mutual. In my own time, I negotiated the Jay Treaty with Britain because unresolved tensions over commerce and navigation threatened to bleed into war. Every concession I made, I weighed against what the other party conceded in return. A one-sided obligation — one that binds a single party while leaving all others free — is not a treaty; it is a surrender dressed in procedural language. If the National Review's characterization is accurate, and I mark it as an inference I cannot verify from the dossier provided, then the operative question is whether any multilateral framework ensures that competing industrial powers bear comparable burdens.

The second question concerns the construction of legal instruments. Litigation that stretches a statute or regulatory authority beyond what the drafting Congress plainly intended is not law; it is legislation by another forum. I held, as Chief Justice, that courts must say what the law is, calmly and within the case properly before them — not what a party wishes it to be. Where domestic courts are being used to impose energy constraints that no legislative majority has authorized, that is a question of judicial restraint and constitutional order, separate from the climate question itself.

The third question is strategic, and here I tread with acknowledged humility. In my era, the Republic's greatest vulnerability was being drawn into European quarrels through commercial entanglement. The parallel today — again, by inference — is that a nation which unilaterally hamstrings its own productive capacity in a domain where rivals feel no similar pressure may find itself in a weakened posture at exactly the moment diplomacy requires strength. Weakness invites the kind of pressure that forecloses negotiated settlement.

None of this is an argument against environmental stewardship. A nation that poisons its own commons is not strong; it is merely reckless in a different direction. The argument is for reciprocity — the same principle that animated every treaty I signed. If the goal is a cleaner world, the instrument should bind all the significant parties, or it binds no one in any meaningful sense. Advocates who genuinely believe in their cause ought to be the most insistent on multilateral, verifiable, symmetrical obligations. Anything less is theater that costs real treasure and yields no real result.

What should be done? Congress and the executive ought to scrutinize every domestic energy constraint against a single question: does a corresponding obligation fall on the principal rival economies? Where the answer is no, the constraint should be revisited — not abandoned, but restructured into a framework that demands reciprocal commitment. The public faith of this Republic is not well served by regulations that punish its own citizens while leaving competitors free to advance. That is not environmentalism; that is, at best, unilateral disarmament by litigation.