Federal Land Retention and the Constitution’s Property Clause: (Univ of Colo Law Review)

University of Colorado Law Review, Volume 76, Number 2, 2005 ^ | 2005 | Robert G. Natelson*

[MamaTexan]

IOW, for a State not to have control of its territory is not to have been admitted on an equal footing

Okay, sorry, but between the 'That's Orwell-speak' statement and the use of the unfamiliar anacronym (IOW), I have to admit my ignorance as to what you opinion is on the subject.

Do you believe the Constitution allows for new States to be admitted on an unequal footing with the Original States?

I really not trying to be obtuse, it's just that FR has taught me it's better to ask than assume.

[Carry_Okie]

Okay, sorry, but between the 'That's Orwell-speak' statement and the use of the unfamiliar anacronym (IOW), I have to admit my ignorance as to what you opinion is on the subject.

IOW means "in other words."

I really not trying to be obtuse, it's just that FR has taught me it's better to ask than assume.

I respect you greatly MT, so if I was hasty or obtuse I apologize. I meant that to regard a State in control of virtually 100% of its land as on "equal footing" with a State with control of less than 10% is Orwellian.

Do you believe the Constitution allows for new States to be admitted on an unequal footing with the Original States?

Certainly not after the Fourteenth Amendment 'equal protection' clause, particularly when one realizes that the Constitution was (supposedly) designed for the purpose of protecting the people and the States FROM the government. The national government was to regard ceding the land to the States as in the interest of the people (that "We" thingy in the preamble) it is supposed to serve as a matter of their liberty, general welfare, republican form of government, etc. and therefore in the national interest. From the perspective of everything from the Tenth Amendment to enumerated powers, I see no Federal power to manage land within the States. Territories yes, States, no.

[MamaTexan]

I respect you greatly MT, so if I was hasty or obtuse I apologize.

LOL! Appreciated, but it wasn't you, it was me. I was (justifiably) rebuked yesterday for using my big bad brush, and I was trying not to repeat the error.

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I meant that to regard a State in control of virtually 100% of its land as on "equal footing" with a State with control of less than 10% is Orwellian.

Agreed.

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I see no Federal power to manage land within the States. Territories yes, States, no.

Good, then we are in agreement as to original intent. I respect your opinion, too, so now I'm REALLY glad I asked. :-)

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As far as the 14th Amendment goes, they can pretend it was some kind of legalistic game changer, but that doesn't make it so.

First, because the purpose of an Amendment to a contract is to refine the previous meanings, not REdefine them. Secondly, because the pertinent restrictive clauses are still in place.

[Carry_Okie]

Good, then we are in agreement as to original intent. I respect your opinion, too, so now I'm REALLY glad I asked. :-)

LOL You didn't think I was concerned, did you? I know you better than that, so I knew that the disagreement had to be confusion about context or some such. Current implementation of the equal footing doctrine has become a mockery of the Constitution, particularly for Alaska.

The big problem in the Constitution with respect to its enumerated powers that caused the Feds to retain land illegally was funding an adequate national defense. In fact, I think the failing of the Articles of Confederation was due to an atmosphere in which possible reconquest by a European power was imminent. Tariffs became a huge injustice to the southern States and the principal grounds for the Civil War. As technology changed, the demand for permanent infrastructure (such as a navy) outstripped the ability of the government to fund it. That problem also played into the financial crisis that spawned the Federal reserve, the income tax, etc. Nor do I see a system of 50 militias working together effectively as a national defense.

Unfortunately, once the Feds got that income tax revenue stream to fund said navy, it was Katie bar the door. It's a tough problem.

[MamaTexan]

Nor do I see a system of 50 militias working together effectively as a national defense.

If I may ask, how so?

I could certainly understand with today's 'modern' Constitutional interpretation, but the national defense provision was quite restrictive. Mostly because things like 'border patrol' and implementation of immigration was reserved to the States.

The militias were quite autonomous until a State made a request to the federal government for assistance and the militia, once called up, reached the point of muster. It was only then they were considered as being 'in the service' of the United States. (Houston v. Moore, 1820)

It would seem an elegant and workable solution to me if one were trying to avoid standing armies, but I guess we'll never really know since the idea never had a chance of being tried.

[Carry_Okie]

If I may ask, how so?

I'm speaking as an engineer here having worked in the defense industry knowing what it takes to build the coordinated communications and logistical infrastructure of a national military. Between 50 State legislatures with 50 command hierarchies, coordinating it all would be a nightmare.

[MamaTexan]

Between 50 State legislatures with 50 command hierarchies, coordinating it all would be a nightmare.

LOL! Point taken.

[Girlene]

An interesting review. He makes the point that the central government is required to treat different parts of the country equally. This is not possible if the federal government owns most of the territory in some states and very little in others.

He posits that government was not intended to retain property. Jurisdiction over real property was to be a state issue. States controlled land titles, land transfers, inheritance..."virtually all aspects of real estate laws and usage".

He posits that the most important function of the Property Clause was to dispose of territory property and create states. Such property was to be sold to private parties and moneys were to be used to pay off public debt and reduce taxes.

Equal Footing....since the admission of Tennessee in 1796, Congress has included in each State's act of admission a clause providing that the State enters the Union "on an equal footing with the original States in all respects whatever."

I wouldn't say Nevada is on equal footing to Texas, would you?

[xzins]

I agree. Nevada is not on an equal footing with Texas. After 150- years as a state, the Fed has had more than ample time to dispose of public land in Nevada. My sense is that the open range was assigned a declared purpose long ago and that was for grazing. The law of adverse possession might not apply, but “adverse utilization” has been established. A fair court would award that land to the state and the purpose for which it has been utilized now for generations.