Posted on 04/16/2014 3:12:56 PM PDT by xzins
Federal Land Retention and the Constitution’s Property Clause: The Original Understanding (Conclusion)
Robert G. Natelson*
Conclusion
Considered from the vantage point of original meaning, both the conservative and liberal interpretations of the “other Property” portion of the Property Clause are partly correct. The liberals are correct in that the Constitution – not just arguably, but clearly – authorizes permanent property ownership outside the Enclave Clause. The clarity of this result flows both from the text of the document and from comments made during ratification. Moreover, the liberals are correct in suggesting that those lands are subject to a public trust and cannot be ceded to the respective states without compensation. Federal land disposal, like federal land management, must serve the interest of the entire country.
On the other hand, the conservatives are correct about another aspect of original meaning. As understood at the time of ratification, the Constitution did not permit the federal government to retain and manage land indefinitely for unenumerated purposes. Massive, permanent federal land ownership would have been seen as subversive of the constitutional scheme. The federal government’s authority to dispose was unlimited (except for trust standards), but its authority to acquire, retain, and manage was not: all the latter functions could be exercised only to serve enumerated powers. To be sure, Congress would have considerable discretion as to how to effectuate enumerated powers, and reasonable exercises of discretion were not to be questioned. At the end of the day, however, all federal land not “necessary and proper” to execute an enumerated power was to be disposed of impartially and for the public good.
I should not be understood as saying that the framers and ratifiers meant to require sale on the open market or to the highest bidder as the only way of disposing land for the public good. That was the method appropriate in 1788, perhaps; but they would have understood that in later times the “proper” methods of disposition would vary according to the needs of the country and the nature of the land.223 In future years, the public interest might justify disposing of (on suitable terms) agricultural lands to homesteaders, mining lands to miners, and environmentally sensitive lands to other public entities or to nonprofit environmental trusts. Generally, though, the Constitution’s original meaning was that lands not dedicated to enumerated functions were to be privatized or otherwise devolved on terns that best served the general interest.
For the entire study go to link and then go to full screen.
http://constitution.i2i.org/sources-for-constitutional-scholars/federal-land-retention-and-property-clause/
*Professor of Law, University of Montana; Senior Fellow, the Goldwater Institute; Senior Fellow in Constitutional Jurisprudence, the Independence Institute; President, Montana Citizens for the Rule of Law. I am grateful the assistance of the following individuals: for review of the manuscript and helpful suggestions, Professor Jonathan H. Adler, Case Western Reserve University School of Law and Elizabeth J. Natelson; for secretarial assistance, Charlotte Wilmerton, University of Montana School of Law.
NO! That is not what they say. They say that that language is specific to:
“all places purchased by the consent of the legislature of the state in which the same shall be,”
Big freeping difference.
This is all well and good, but does not pertain to the land in question in Bundy’s case.
The lands that were in use by private interests were protected by the treaty that ceded them to the U.S. and there was no provision in the treaty for reverting them to the government.
Even if Bundy’s claim were somehow defective (which I do not believe is true) the Fed Gov still would have no claim to it.
What’s really amazing is that in Oregon the federal government gave huge amounts of land to the Oregon & California railroad in exchange for building a railroad. When the railroad didn’t build the track, the land came back to the federal government. They said it could be used by the state for the schools. Ha. Eventually that stopped and that is now BLM land.
On document thread we linked what we could find about Hillary’s 2009 trip to give the Chinese eminent domain of federal land as collateral for our loans. Keep you eye out for any more information on that subject and link it to thread
There is land in both CO and TX being targeted by BLM too
My hunch is it all fits together. Hope hunch is wrong!
>> “ Hillary’s 2009 trip to give the Chinese eminent domain of federal land as collateral for our loans.” <<
.
That would require a constitutional amendment.
I stopped counting at 39.
“That would require a constitutional amendment.”
Yep, good luck in getting one of those...
Therefore, tyranny, abuse of power, corruption, more FedZilla, more FedCoats, targeting people like me and my children.
Molon Labe.
---
The federal entity has pledged this land as collateral to China in return for their purchase of our debt. This is how China has financed our profligacy.
As we issue more bonds and currency to pay for our military machine and national instant gratification, our dollars become worth less. China has been buying massive amounts of gold from us, and we've sold it to them to keep the price of gold down to make the dollar look good. But now China wants real assets for their ever-depreciating dollars, and they want more than just gold. This is why they're buying ports, farm land, mines and land for industrial development. That land has to be handed to them via the eminent domain process.
My dad is 94. He practiced law for fifty +. He’s appalled by the entire thing
I’m a lady and don’t act or tell my age..... First grand daughter is due today!
Hope there’s a country left for her
Your “which Constitution” question is the root of the matter. And it’s not the “liberal judges” that are the problem, it’s the 14th Amendment incorporation without open acknowledgement that is the problem. It’s the application of perfectly legal corporate law in a wrongful way - i.e. against NON-corporate people and businesses.
It certainly should. BUT 0 and the hill-billy are all above the law don- chah know
See document thread linked above for more information
Hillary should be wearing orange
The tenth amendment limits the Treaty Clause. The government cannot enforce a treaty against a state or the citizens that is in violation of the bill of rights. Further the treaty was with Mexico. While it gave the land to the Feds, it did not give the Feds the right to continue to maintain ownership after Nevada was granted statehood. Any document that purports to do that is void as being in violation of both the property clause and the Bill of Rights.
Is Nevada still a territory of the United States, or is it a sovereign State on equal footing with states like Texas that are only 1% or less owned by the Feds?
Absolutely. And that is perfectly in line with our main mission here on Free Republic. Restoring the Constitution and securing the Blessings of Liberty for ourselves and our posterity.
The next questionable factor is on page 332, last sentence of the first paragraph.
Yet the Equal Footing Doctrine, while found in the Northwest ordinance is unmentioned in the Constitution and thus rarely is a factor in Constitutional adjudication.
That's really weird. Especially considering all the entries Congress left in the Library that say things like- Bills and Resolutions, House of Representatives, 38th Congress, 2nd Session, Read twice and referred to the Committee on the Judiciary. An Act Supplementary to an act entitled ''An act to enable the people of Nevada to form a constitution and State government, and for the admission of such State into the Union on an equal footing with the original States.
http://memory.loc.gov/cgi-bin/query/D?hlaw:1:./temp/~ammem_BUtJ::
There are also entries for other States, all with the same wording
http://memory.loc.gov/cgi-bin/query
.....on an equal footing with the original states.
Sure looks that way and the. Add in the material that LIZ has
We have so many threads and so much good material. Need to put on one thread so it can be sent in mass to those who can act upon it.
I downloaded a pdf copy from the basic source, and I sent it to a few lawyer friends.
What I don’t have is a pdf to word converter program, and I’m hesitant to give the online free converters access to my computer.
If anyone can convert the pdf of the entire study to word and then copy/paste and send it to my freepmail, and to others interested, I’d appreciate it.
The good thing about this study being on Free Republic is that it can be reviewed and analyzed. The professor has a long history of supporting conservative causes, but some might want to double check part A of his conclusion that the liberals are right about permanent property ownership and that they can’t be simply ceded to the states. (He then says in Part B that permanent ownership can’t be for unenumerated purposes.)
Not to worry---everything's going viral.
One has to wonder how it could have reverted to the feds, but this study says they have to eventually divest themselves of it.
How long has Oregon been a state?
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