The NY Times shows some intelligence in an editorial

Rarely do I find myself agreeing with the editorial page of the NY Times, or the front page for that matter. Then again, front page and editorial page, I repeat myself. But I have to say I found this intriguing.

Who Controls Montana’s Rivers?
The Great Falls Reach of the Upper Missouri River in Montana cannot be navigated by boat. In that 17-mile stretch, as Lewis and Clark documented in 1805, the river cascades down nine waterfalls. The explorers’ journals are evidence in a Supreme Court case that turns on whether the Missouri and two other rivers were navigable in 1889 when Montana became the 41st state.

Though the history is esoteric, the legal issue is straightforward: can a state seek compensation for the use of a riverbed if it did not do so for a century?

The Constitution gives states control of navigable waters within their boundaries at the time of statehood and nonnavigable stretches to the federal government. If the court concludes that the Montana rivers were navigable in 1889, the state could potentially collect more than $50 million from a power company that owns hydroelectric dams, licensed by the federal government, on the rivers. The power company appealed the Montana Supreme Court ruling that the rivers were navigable routes of commerce, despite obstructions in parts. It contends the court should analyze the rivers section by section, with some stretches like the Great Falls Reach deemed not navigable.

Justice Antonin Scalia zeroed in on what makes the case quite odd: from 1891 until 2004, the state never asked for compensation from the companies. He said, “Now they come back, what, 100 years later, and they not only want to get the land back, they want to tax them for their use of it over all these 100 years?”...

What can raise an eyebrow here?

1. The Times seems to indicate the Constitution means what it says and says what it means. What a radical conservative view of a living and breathing document. I would have believed they would find something next to the Right to Abortion, Privacy and Health Care. You would think they would say "...right of the people to keep and bear arms shall not be infringed." actually applies to the people individually, not an organized militia.

2. They are agreeing with Justice Scalia. I for one am delighted to find these lovers of judicial activism (hell they love justices amending the Constitution by fiat) aligning with one of the greatest strict constructionist Times has no shame. And I doubt anyone will notice their blatant hypocrisy.

All in all it's nice to show their real motives.