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.
It does pertain in that Nevada has been a state for 150 years plus or minus a bit. In that time, one would think the Fed would have found a way to divest themselves of this property.
I’m thinking that the truth is that the FED did identify it for a particular purpose....as “open range”. At that point in time that act identified that land’s intended purpose, and it should then have come under Nevada’s control.
should have pinged you from the beginning to both the above conclusion and the entire article at the link
Sure hope so. Am more concerned that it gets to the SCOTUS or con grease then to the media at this time. ( I know auto spell changed the word but some how their interpretation seems appropriate
They cant answer this..then if that treaty was so important, then all treaties, obtaining territories, from the beginning of this republic till now, claim that NO STATE has any rights what-so-ever.
This must end. Americans must demand that they be treated as Citizens and not as subjects.”
We, as a Nation should be eternally grateful to men like Cliven Bundy for their fortitude and resolve to stand for our Constitution.
I suspect you are correct, and, keep in mind that Nevada is called the Silver State, for its minerals played an important part in the civil war. Also, north of Vegas, is where they set off numerous nuke tests in the Nevada range. Maybe the Reids would like to have that land for their family fortunes.
LOL-—con grease is a good nickname for the scalawags.
We have national forest in our area. Used by all camping fishing etc. only fees are at improved sites
About 30 years ago he Feds purchased several farms. If for sale they paid the price. Made agreements with others to buy at time of death of owners
For fair market value. The area is now a wildlife refuge We have increased migrating birds and small mammels in the entire area. Entrance is free and most are happy that it was not turned into subdivisions, factories and warehouses Its become an asset to our community Even the families involved were not upset as the land some chose to move to was better farm land without drainage issues
So the land is being “used” for the good of the people which seems to be consistent with the intent
Opinion?
“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.”
And that’s why Cliven Bundy is right, no matter how statists may natter about “unpaid fees.”
Didn’t G. Washington say something about entangling alliances?
I used to visit army depots up and down Nevada all the way to Sierra Depot not far across the line from Reno into Cali. Think it was 95/93.
It was barren. It was rocks and sand until you found elevation, and then you’d find a few little towns. I knew about the mining days, the silver, etc., but beyond that in terms of utility it wasn’t much. If a few ranchers were able to feed cattle, then more power to them.
And I’ll bet that’s exactly what the fed thought when they purposed that land. In my opinion, when they purposed it, they gave up oversight.
I was stared down by a BIG cow out in the open range between Lida and Silver Peak about 51 years ago.
I let him have the road(?) for as long as he wanted it...
...I'm sure he could have easily run down my 50cc Honda...
Bookmark
Only that once the intent has been established, that it reverts to the states. I’d say pretty much the same about all parks and national forests. Nothing says the state can’t retain it as a park.
The Greeks recently resorted to selling islands.
We will eventually be forced to sell huge tracts to foreign creditors.
Just like putting someone who wasn't a Natural Born Citizen into the Whitehouse…
Let's be honest, the Federal Government don't care about the Constitution and the only thing keeping them from unilaterally dissolving it is that such action would spark all out Civil War (in a manner that they couldn't spin*).
* I believe that there are those who desire some confrontation to justify bloodletting; but in order to do that they need at least plausible deniability on being the aggressor and at least the appearance of being morally/legally in-the-right.
So you’re tell me that cow claimed ownership, too? :>)
Then, after a while, we can nationalize them!!
So you’re telling me that cow claimed ownership, too? :>)
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