Does Federal Government’s Land Ownership Violate the Constitution?

DOES THE FEDERAL GOVERNMENT’S VAST LAND OWNERSHIP REALLY VIOLATE THE CONSTITUTION?

By: Loren Edward Pearce

Many people, including Bundy supporters, argue that the Bundys are wrong, that the federal government does have a constitutional right to own millions of acres of land.

In 1803, Governor Morris, the principal proofreader and editor of the finished Constitution, confessed that he would have liked to have written the Property Clause so that Canada and Louisiana, once acquired, could be governed perpetually as federal provinces. He acknowledged, however, that there was little he could do to further that vision, because his fellow delegates did not agree with him. Those delegates adopted the Property Clause amid an almost universal assumption that its most important function was to promote land disposition and the creation of new states! [Letter from Morris to Henry W. Livingston (Dec 4, 1803)]

Morris, a federalist (proponent of centralized, national government), knew that his colleagues would not go for the centralized, federal retention and control of large territories or property.

The anti federalists (no centralized control) were worried about too much federal (centralized) control and the federalists consented to the Enumerated powers doctrine that was embedded in the constitution meaning that unless it was specifically listed as an enumerated power, it automatically defaulted to the states.

WHAT PART OF “FEW AND DEFINED” DON’T YOU UNDERSTAND?

James Madison, a supporter of centralized government, wrote:

“The powers delegated by the proposed constitution of the federal government, ARE FEW AND DEFINED. Those which are to remain in the state governments, ARE NUMEROUS AND INDEFINITE. The former (federal government) will be exercised principally on external objects, a war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, AND PROPERTIES OF THE PEOPLE; and the internal order, improvement and prosperity of the state.” FEDERALIST NO. 45

Another respected federalist, James Wilson, stated:

“I leave it to every gentleman to say whether the enumerated powers are not as accurately and MINUTELY DEFINED, as can be well done on the same subject, in the same language…nor does it, in any degree, go beyond the particular enumeration; for, when it is said that Congress shall have power to make all laws which shall be necessary and proper, those words are LIMITED AND DEFINED by the following, “for carrying into execution the foregoing powers”, it is saying no more than that the powers we have already particularly given (enumerated), shall be effectually carried into execution.”

Did you get that?  Many people claim that congress was vested with powers to do whatever it damn well pleased, in other words, to pass the laws that it sees fit to pass for whatever reason, or no reason, because the people, from which all power flows, elected them to pass laws, by majority vote, and that if there was any conflict with the constitution, the unlimited powers of congress would trump all other considerations.  Many federalists today, claim that congress is the most powerful entity in the land because they can overcome executive vetoes and Supreme Court decisions by obtaining enough votes to overturn them.

The proponents of federal land control like to cite a Supreme Court decision which gave congress power “without limitation” to do what it wants with land.  United States v. City of San Francisco, 310 U.S. 16, 29 (1940).

But, Wilson is saying that is not the case.  Congress does not have unlimited powers with land or anything else.  Congress cannot exceed the enumerated powers granted to it by the supreme law of the land, the constitution.  The only way congress can get around those enumerated powers is by constitutional amendment which requires ratification by 2/3 of the states.

Under the Property Clause, congress had power given to it to “dispose” of property that it had acquired through treaty. It had a right to retain property for the purpose of fulfilling its limited mission as enumerated, i.e, forts, docks, navies, armies, post offices, etc.  But, millions of acres of land owned by the federal government is in direct opposition to Madison’s statement, “few and defined”.

WHY ISN’T WASHINGTON, D.C. A 1000 SQUARE MILES?

To illustrate this prevailing sentiment against federal control of real estate and property, the historical record shows through letters, transcripts and journals that considerable time and energy was spent debating the size of the federal enclave, Washington, District of Columbia. Territory that had not been made a sovereign state, was often called a “district”.

The framers argued over the 10 mile square size (100 square miles) of the District of Columbia because they worried that it was big enough to become a haven for a large standing army with munitions, or engaging in business and commerce outside its scope of its agency and that it would also be a haven for other forms of corruption and favoritism often found in centralized governments such as the British government who they had just fought.

Many argued that 10 mile square should be reduced to 1 mile square which was plenty big enough for the limited federal government to conduct its limited powers. Therefore, with this kind of mistrust of centralized, federal government, anything bigger than 10 mile square was out of the question, unless it served the enumerated purpose of the federal government, which Madison clearly stated was very limited.

If, as many federal supporters claim, congress has unlimited powers to do whatever it damn well pleases, then why limit themselves to 10 miles square?  Why not 100 miles square or 1000 miles square for the capitol of the USA?

INTERPRETING THE PROPERTY CLAUSE OF THE CONSTITUTION

THE PROPERTY CLAUSE, Art 4, Sect 3, Cl 2
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; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

THE ENCLAVE CLAUSE, Art 1, Sect 8, Cl 17
To 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 bias and presumption was towards disposal of Territory and other Property that allowed the federal government to fulfill its Enumerated, delegated and LIMITED powers.

During the time of the Louisiana purchase, the Northwest territories, real estate acquired by treaty with Mexico, the federal government sold, as quickly as they could find buyers, all that real estate in its possession, in order to reduce the national debt. It was the intention of the federal government, under Jefferson and others, to return the land to the private use of the people who could then petition the Congress for statehood.

It was the Northwest ordinance where we get the “equal footing doctrine” where states are admitted to the union on an equal footiing in all respects.

In the controlling and landmark decision, Pollard Lessee v. Hagan, 44 U.S. 212 (1845)
“This right originated in voluntary surrenders, made by several of the old States, of their waste and unappropriated lands, to the United States, under a resolution of the old Congress, of the 6th of September, 1780, recommending such surrender and cession, to aid in paying the public debt, incurred by the war of the Revolution. The object of all the parties to these contracts of cession, was to convert the land into money for the payment of the debt, and to erect new States over the territory thus ceded; and as soon as these purposes could be accomplished, the power of the United States over these lands, as property, was to cease.”

Furthermore, the court stated that the federal government had no municipal or sovereign authority from the constitution over those lands,

“The shores of navigable waters, and the soils under them, were not granted by the Constitution to the United States, but were reserved to the States respectively, and the new States have the same rights, sovereignty, and jurisdiction over this subject as the original States. When Alabama was admitted into the union, ON AN EQUAL FOOTING WITH THE ORIGINAL STATES, she succeeded to all the rights of sovereignty, jurisdiction, and eminent domain which Georgia possessed at the date of the cession, except so far as this right was diminished by the public lands remaining in the possession and under the control of the United States, for the temporary purposes provided for in the deed of cession and the legislative acts connected with it. Nothing remained to the United States, according to the terms of the agreement, but the public lands. And, if an express stipulation had been inserted in the agreement, granting the municipal right of sovereignty and eminent domain to the United States, such stipulation would have been void and inoperative, because THE UNITED STATES HAVE NO CONSTITUTIONAL CAPACITY TO EXERCISE MUNICIPAL JURISDICTION, SOVEREIGNTY, OR EMINENT DOMAIN, WITHIN THE LIMITS OF A STATE OR ELSEWHERE, EXCEPT IN THE CASES IN WHICH IT IS EXPRESSLY GRANTED.”

Congress could not use the Property clause as a pretext or excuse, to obtain property outside the scope of its limited powers!

In M’Culloch v. Maryland:

“Should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government; it would become the painful duty of this tribunal (Supreme Court), should a case requiring such a decision come before it, to say that such an act was not the law of the land.”

Congress could retain treaty land for military purposes, even without State legislature approval, but only because military land was essential to the general welfare of the United States and was an enumerated right of congress. The retention of non-enumerated land, land that did not fulfill its role as a federal government, could not be retained but must be disposed of.

THE ENUMERATED POWERS OF THE FEDERAL GOVERNMENT DO NOT INCLUDE NATIONAL PARKS, NATIONAL MONUMENTS AND WILDERNESS REFUGES.

If Congress, and the people, want to set aside vast tracts of land for environmental or heritage purposes, they must do so through private trusts or with state legislature approval.

Today, we have the federal government controlling 400,000 square miles of real estate (approx. 700 million acres), running it like a business, by buying, seizing, confiscating, selling and leasing property as they, the federal bureaucrats, deem appropriate with little citizen oversight.

Contained within those 700 million acres, are billions of dollars of natural resources: minerals, petroleum, gas, coal, timber, crops, etc.  The control of such wealth, lies in the hands of a few politicians and bureaucrats.

The massive size of the BLM has led to it forming its own Enclave, with its own federal government consisting of an executive branch (bureaucratic executives), its own judiciary (administrative law judges) and its own legislature (rules and regulations) and even its own well equipped police force for enforcing its executive decisions and its rules and regulations. This was not the intent of Governor Morris or his colleagues when ratifying the new constitution.

INCESTUOUS RELATIONSHIPS

Senator Harry Reid of Nevada has taken advantage of this “scope creep”, this vast, unconstitutional behavior of the present day government, by using his power and influence to get his former senior adviser appointed to the top post in the BLM.  Confirmed by a 71-28 Senate vote on April 9, BLM chief Neil Kornze served as a former senior adviser to Reid before he joined BLM in 2011, serving for the past year as the agency’s principal deputy director, according to a CBS local television news report broadcast in Carson City, Nevada.

From this incestuous relationship, has come evidence that Reid and his son, Rory, made moves that could line their pockets and give them more political leverage with the lands surrounding and on the Bundy property.

In addition to having his hand picked Kornze as head of the executive branch BLM, Harry Reid locked in the judicial branch with his nomination of Gloria Navarro as chief justice in the Las Vegas federal court.  As chief justice, she can supervise all the cases and assign to herself the cases in which she and Harry have a particular interest.

Although the solar deal with China may have fallen through, on a much grander scale, there is evidence of conspiracy and collusion in how the trillions of dollars of public lands may be used for the benefit of a few people.  There is growing evidence that a few people, like Harry Reid, are using public lands as collateral for debt swaps.

This is what the constitution framers wanted to avoid. This is why they limited federal power and limited control over real estate. This is why those limitations have been eroded, manipulated and in some cases deleted, because it serves powerful interests to have power to be concentrated in a few hands, exactly what the colonists shed their blood trying to change.

THOSE WHO CONTROL THE LAND, CONTROL EVERYTHING

The Bundy patriarch, Cliven, and his four sons, sit in pretrial, pre conviction prison, based solely on the power and authority of one person, Gloria Navarro.  Ammon Bundy has often claimed that, “everything comes from the land and he who controls land, controls everything.”   The powerful few who reside in the federal government, understand this principle and for that reason, will spare no cost, spare no lie, spare no corruption and spare no lives or suffering of the innocent, to get their way.