Skip to comments.Federal Land Retention and the Constitution’s Property Clause: (Univ of Colo Law Review)
Posted on 04/16/2014 3:12:56 PM PDT by xzins
Federal Land Retention and the Constitutions Property Clause: The Original Understanding (Conclusion)
Robert G. Natelson*
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 governments 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 Constitutions 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.
*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.
Since Nevada has been a state for approx. 150 years, the US had plenty of time to dispose of public lands in accord with the intent of the Founders.
That they haven’t, and an unimaginable 89% of Nevada is “held” by the Fed puts them in violation of their responsibilities under the Constitution.
These videos are for people who don't yet understand why Cliven Bundy broke his agreement with the BLM. They show why the BLM should not even be managing the public lands of Nevada or any other state.
Here's one that shows why the Sheriff of Clark County is duty bound to keep the BLM and all Federal agents from arresting Cliven Bundy.
You two need to crosslink your threads or add them to
the document thread
This article discusses original intent, “As understood at the time of ratification, the Constitution did not permit the federal government to retain and manage land indefinitely for unenumerated purposes.” And, “Generally, though, the Constitutions 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. “
But the progressive, liberal, communists, Marxist, evilones, want to reinterpret the constitution.
No problem. If a person or entity wants to change the authority as stated and originally intended in the Constitution, then pass and amendment - and good luck with that.
what would the Framers think of collateralizing public debt with public lands to foreign countries? just curious
Clearly the Constitution would never have been ratified if the States had any idea that the document they were signing onto gave the federal government the power to seize and/or own huge swaths of real property within a sovereign state.
That is why the specific instances in which the federal government may own land are specifically enumerated.
Under the current scheme the federal government has assumed non compensable seizure power through unconstitutional and onerous regulations and they have effectively claimed ownership rights not only to 80% of Nevada, but 100% of the land within all 50 states.
You can’t dig a hole in your back yard without getting some kind of federal permit. And the requirement for any kind of permit is a recognition of ownership rights.
Americans must assert these rights or we will lose them. In regard to private and state ownership rights, we have already lost them. It is time we took them back!
Cliven Bundy will someday be recognized as a true American Hero.
Now is the time for all good men to come to the aid of Cliven Bundy!
The one that means what it says?
Or the one that means what liberal judges say it means?
This is OUTSTANDING!
I think I am convinced.
Didn’t know about that thread. Will do. Thanks, very much!
I think, given the culture and politics at the time, the FF would find even the sale of American land to foreign sovereigns abhorrent.
You and I and just about everyone here agrees. Except for a few government hacks on here that like to post to get responses.
The question they cant answer is; what does art 1 sec 8 the 17th enumerated power say? It says, the FEDERAL government can not retain any land other than what is listed.
They answer by saying..OH THE TREATY! But the Treaty! When Nevada became a state, all that land goes to them and IF they passed, in their constitution saying otherwise, then, their state constitution needs to be corrected.
“nonprofit environmental trusts.”
You see..these people wouldnt want that. Why? Because then, they would have to pay taxes to the local areas on it.
You all wonder why they do what they do? Because they plan to use that land for their own personal satisfaction and let us pay for it.
Frankly, in my 39 years on this planet (/s) I had never really given a second thought to Federal Land ownership. It was just something we all took for granted. Then the Feds overplayed their hand with Cliven Bundy’s cattle ranch and my eyes were opened.
This was clearly something the framers never imagined. The federal ownership of land is a return to serfdom with the Federal Goverment being The Lord and the states and the people being subservient serfs.
This must end. Americans must demand that they be treated as Citizens and not as subjects.
That is exactly where I am. Except I’m 43.
They warned us. But we wouldnt listen.
The government, in their underhanded ways, has got most of the people used to being servants to the aristocracy...
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