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.)
14. 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 government of the United States; and to exercise like authority over all places purchased by consent of the legislature in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings. The exclusive power of legislating in all cases whatsoever, except within the precincts of the seat of government, not exceeding ten miles square; and except within the precincts of such forts, magazines, arsenals, dock-yards, and other such needful buildings, as may be erected by congress with the consent of the state, in which the same shall be, being reserved to the states, respectively.
George Tucker, View of the Constitution of the United States
Forts, magazines, arsenals, dock-yards and other needful buildings. Notice the specification – buildings, not *property*. One ‘needful building’ could be a lighthouse to mark a port out in the more open water, but there is nothing in there about any enclave or anything other than ‘buildings’. Also there is no specification for any building not connected to the provision ‘to provide for the common defense’, so there would be no reason to assume the insertion of the words enclave OR property would make any difference.
The word ‘purchased’ is also glaring in its inclusion. Should the power to hold Territories or other property outside the enclave of the general government even exist, the fact they must be purchased, NOT EXTORTED, would immediately call the legitimacy of their 'ownership' into question.
-----
Then, on page 358, he runs right over the top of the Rule of Exclusion by trying to attribute greater or lesser meaning to the words involved.
However, even one without legal training could see that because the Enclave Clause granted Congress authority to “exercise exclusive Legislation in all Cases whatsoever” over enclaves, if “other Property” had meant only enclaves then the power to “make all needful Rules and Regulations respecting….other Property” would have been superfluous. So “other Property” has to mean something different from enclaves, and “Rules and Regulations” had to mean something less than “exclusive Legislation.”
Um, no, the Founders meant what they wrote and wrote what they meant. The Rule of Exclusion is how the Founders used the Constitution to create a limited government… -
§ 207. XIII. Another rule of interpretation deserves consideration in regard to the constitution. There are certain maxims, which have found their way, not only into judicial discussions, but into the business of common life, as founded in common sense, and common convenience. Thus, it is often said, that in an instrument a specification of particulars is an exclusion of generals; or the expression of one thing is the exclusion of another. Lord Bacon's remark, "that, as exception strengthens the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated," has been perpetually referred to, as a fine illustration.
Justice Joseph Story on Rules of Constitutional Interpretation
-------
The author also fails to note the provisions he is so desperately trying to connect are listed under 2 different Constitutional Articles. The first is under the 1st Article under the Section Powers of Congress, while the second is under the 4th Article under the Section New 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;
One without any legal training could clearly see the ‘Territory or other Property’ in this section would STILL mean the same thing, as no other type of ‘property’ is listed.
And if one wanted to be especially persnickety, one could argue this particular section concerns making the Rules and Regulation for the DISPOSAL of property for the sole purpose of creating new States, as the conjunction ‘and’ inexorably connects the action to the authority.
--------
That’s my take on what I’ve read. To be quite honest. His ‘even one without legal training’ snark was enough to turn me off of trying to wade through anymore of it. Anyone who would try the ‘you’re stupid if you don’t agree with me’ tactic really isn’t someone whose opinion I care to learn more about.