This Land is Your Land

Most all major news outlets in America, if they even cover it, have couched the disturbance between the Bureau of Land Management and Cliven Bundy as one based on the Bundy Ranch refusing to pay for grazing rights on Federal property. Yet, a similar incident between the U.S. Forest Service and Kit Laney in New Mexico, in which the Forest Service claims part of the Laney Ranch is on Federal property, has the same basic principle at stake and it has nothing to do with grazing rights or boundary disputes. Those issues are moot points if we answer a more basic question; what legal authority and for what purpose does the Federal Government have to “own” property in the United States?

As Woody Guthrie’s ballad proclaims and in spite of his Communist beliefs,[1] the idea that public property is your land and is my land, is more in line with the original intent of the Constitution when understood in the context as being between the Federal government and citizens of the United States. In other words, public land belongs to the people, not the government and the national government’s authority over it is limited by the US Constitution.

The root of this controversy lies in the interpretation of the Property Clause from Article IV, Section 3, Clause 2 of the Constitution which states: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States…”

Of the sources available, which sheds light on the legal aspects of this issue, Thomas W. Merrill[2] makes one of the most thorough and logically sound cases explaining this clause. According to Merrill, the Property Clause can be interpreted using one of three theories: the Proprietary theory, the Police-Power theory, or the Protective theory.

The narrowest interpretation is the proprietary theory which holds that “the clause confers no political sovereignty over federal landholdings.” This theory argues that States have political sovereignty over Federal land and only allows the Federal government the authority to “set policy regarding whether such lands will be sold or retained and, if they are retained, who may enter these lands and for what purposes.”[3]

The broadest interpretation is the police-power theory which holds that the Property Clause confers on the national government “not only the powers of ownership but also general sovereign authority to regulate private conduct that occurs on federal land or that affects federal land.” [4] Under this theory, Congress may pass legislation that supersedes State law to include: “codes of criminal law, family law, and exemptions from state taxation for persons residing on federal lands.”[5]

An alternative theory, the protective theory, “go[es] beyond the proprietary theory in regarding the clause as a partial source of sovereign authority. But it … stop[s] short of the police-power theory by limiting that authority to legislation designed to protect the proprietary interests of the United States. Under this intermediate conception…the clause would permit Congress to pass federal legislation regulating the sale of federal land, protecting federal land from trespasses and nuisances, or exempting federal land from state taxation. On the other hand, the clause would not permit Congress to enact a general code of criminal law or family law, nor would it permit Congress to exempt persons residing on federal land from general rules of state taxation.”[6]

Of the three interpretations, the police-power theory is the least likely to be what the framers of the Constitution intended and what the States and the people understood when they ratified the Constitution. In order to understand why this is true we must take a closer look at the Constitution and some historical evidence.

The two main reasons the police-power theory is highly unlikely as an originally intended interpretation is that: 1. The Constitution grants most all of the powers to Congress in Article I with very few other powers delegated in any other article. 2. The Property Clause is in Article IV, which generally deals with issues of State-to-State relations and not delegation of Federal power. It is, therefore, unlikely the founders delegated such an extensive and substantial power to Congress in Article IV.

More definitive evidence of this is found in Article I, Section 8, Clause 17, known as the Enclave Clause which gives Congress power “[t]o exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings…”

The Enclave Clause only gives Congress sovereign authority, referred to as “exclusive Legislation,” over property, relinquished by or purchased from particular States, to the Federal government and then only for specific purposes such as the seat of government, “the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings.”

Given the precise language of the Constitution, it is completely out of character for the framers to have included overlapping and contradictory powers granted in the Enclave and Property clauses. This alone, makes the police-power theory completely untenable as a reasonable and logical interpretation of the Property Clause, but there is historical evidence that also rules out the police-power theory.

The Property Clause was included in the Constitution to give Congress authority to uphold the Northwest Ordinance, which was first past under the Articles of Confederation in 1787. The Northwest Ordinance included “clauses preserving the freedom of religion, prohibiting uncompensated takings of property, and outlawing slavery. Other provisions of the Ordinance addressed the status of federal land once new states were formed from the territory and admitted to the Union. Such states were prospectively prohibited from interfering with the disposal of lands by the United States or with regulations adopted by Congress to secure title to bona fide purchasers, and they were barred from imposing any tax on federal lands.”[7] This gave the Federal government police powers to some extent, but only in specific and restricted ways detailed within the Enclave Clause.

“Taking the structural and historical evidence together, we can infer what may plausibly have been the original understanding of the Property Clause.”[8] Congress can only exercise unrestricted police power in territories, but once a State enters the union, Congress is restricted in exercising police power to only when it is in accordance with the Enclave Clause. “In short, the Framers intended that the police-power theory would apply to federal land located in territories, but that the protective theory would apply to non-enclave federal land located in states.”[9]

As one might expect, early Supreme Court cases dealing with the interpretation of the Property Clause better upheld constitutional original intent, as described above, than did later court cases. For example, in Lessee of Pollard v. Hagan (1845), Justice McKinley gave the opinion for the court in which he stated, “Taking the legislative acts of the United States, and the States of Virginia and Georgia, and their deeds of cession to the United States, and giving to each, separately, and to all jointly, a fair interpretation, we must come to the conclusion that it was the intention of the parties to invest the United States with the eminent domain of the country ceded, both national and municipal, for the purposes of temporary government, and to hold it in trust for the performance of the stipulations and conditions expressed in the deeds of cession and the legislative acts connected with them.”

According to Justice McKinley “[t]he United States never held any municipal sovereignty, jurisdiction, or right of soil in and to” [10] territory of any of the new States except for temporary purposes and to execute trusts on behalf of the American people. The trusts, in this particular case, include legislative acts of Virginia and Georgia in giving up the land that became the State of Alabama, and the trust created by the Louisiana Purchase in 1803, which was purchased with public money on behalf of the people of America.

As late as 1885, the Supreme Court was still upholding the proprietary interpretation of the Property Clause in Fort Leavenworth Railroad Co. v. Lowe. Justice Field gave the opinion for the court stating, “The United States therefore retained, after the admission of the state [Kansas], only the rights of an ordinary proprietor; except as an instrument for the execution of the powers of the general government, that part of the tract which was actually used for a fort or military post was beyond such control of the state, by taxation or otherwise, as would defeat its use for those purposes. So far as the land constituting the reservation was not used for military purposes, the possession of the United States was only that of an individual proprietor.”

According to Justice Field, the Federal government only possesses the rights of an “ordinary proprietor” on lands in States not used for purposes stipulated in the Enclave Clause. As just noted, the court’s opinion in these two cases completely upheld the proprietary theory interpretation of the Property Clause when the property in question is a non-enclave part of a State.

Unfortunately, later cases covering the Property Clause used less logical lines of reasoning to arrive at their opinions which, as one can imagine, gave the Federal government more power than what was originally intended. Those cases are: Camfield v. United States (1897), Light v. United States (1911), and Kleppe v. New Mexico (1976). Each of these cases delegated more police-power to the Federal government via judicial fiat. For example, in his opinion on Kleppe, Justice Thurgood Marshall stated, “Congress exercises the powers both of a proprietor and of a legislature over the public domain.”

Without any foundation in American jurisprudence, Justice Marshall conjured up legislative power where there was none previously. Along with the mythical legislative power came police power of the national government to enforce laws passed by Congress. This erosion of limited government through judicial fiat has led to the charade in which we now find ourselves. The myth of full legislative power over all public property in the United States has emboldened nationally elected politicians to reward their political supporters, through exclusive commercial access to public property, or attempt to enrich themselves as Harry Reid seems to be doing in the Bundy case.

This might explain why Harry Reid called Cliven Bundy and his supporters unpatriotic domestic terrorists[11] at a televised event hosted by the Las Vegas Journal-Review on April 18, 2014. When one cannot logically attack their opponent’s argument they attack their character, which is the logical fallacy of ad hominem attack.  Perhaps Reid’s definition of a patriot is one who uses political power to enrich themselves and squash ordinary citizens trying to live their lives as their ancestors had for many years.

Make no mistake, the Bundy and Laney incidents are not about grazing rights or boundary disputes, and even though the government seems to put the welfare of “endangered” species over the welfare of citizens it is not about that either. It is about government control.

The more “We the people” allow our national government to usurp power, the harder it will be for us to restore what has been unlawfully taken from us. Please do not be fooled by mischaracterizations of what is happening, if “We the people” allow this to happen to the Bundy’s and Laney’s of this world, it is just a matter of time before the government will be doing similar things to you.

[1] Woody Guthrie upheld Communism prior to the Cold War and he allegedly wrote his ballad, This Land is Your Land, against private property rights.

[2] Edwin Meese III, Matthew Spaulding and David Forte, eds., The Heritage Guide to the Constitution (Washington DC: Regnery Publishing, Inc.), 2005.

[3] Meese, Spaulding and Forte, eds., The Heritage Guide to the Constitution, p278.

[4] Meese, Spaulding and Forte, eds., The Heritage Guide to the Constitution, p278.

[5] Meese, Spaulding and Forte, eds., The Heritage Guide to the Constitution, p279.

[6] Meese, Spaulding and Forte, eds., The Heritage Guide to the Constitution, p279.

[7] Meese, Spaulding and Forte, eds., The Heritage Guide to the Constitution, p279.

[8] Meese, Spaulding and Forte, eds., The Heritage Guide to the Constitution, p279.

[9] Meese, Spaulding and Forte, eds., The Heritage Guide to the Constitution, p280.

[10] JUSTIA US Supreme Court, Lessee of Pollard v. Hagan – 44 U.S. 212 (1845) https://supreme.justia.com/cases/federal/us/44/212/case.html.

[11] Reid’s exact words were: “These people, who hold themselves out to be patriots are not. They’re nothing more than domestic terrorists…”

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