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.
File FoI for the FBI report? Or is it still active? Probably do a sharp-ton!
Yup, what is needed is a massive number of FOIAs for the Harry Reid/Jay Brown report from about 1982. Probably best way is to get the investigators in Utah to look for it. See this subpoena (look down and you will find mention of Jay Brown, he is the key that unlocks everything)
http://le.utah.gov/investigative/subpoenas/Sept25JohnSwallowSupboena.pdf
Bluntly, i am at some risk of being killed if I do this FOIA, so I need other people to do it. And not even you, I mean get the Utah investigators to do the work. I am sure they would want to know the facts behind Jay Brown, the bagman in the Swallow bribery investigation.
Just what the hell is wrong with for-profit environmental businesses in principle?
Can you explain your question?
Back then, Henry Lamb told me that it was fifty years ahead of its time.
Are you talking about businesses with safe environmental practices, or are you talking about businesses that provide environmental services, or something else that I’m missing?
In principle it could be both, but my emphasis is certainly toward the latter. The point is: If what the public wants is more tortoises on Gold Butte, Bundy (or one of his competitors or contractors) should be paid for the work he has done to improve conditions for tortoises as validated and insured by two distinct third parties. It could be done for a fraction of what we are paying these destructive and corrupt bureaucracies, habitat would be better and America could go back to making money with the land. That's the nutshell insofar as it applies to this situation.
I would be fun to watch Bundy do that just so I could watch the bureaucrats choke on it. :>)
Under no circumstances would I let any mediot reporter get away with not understanding how my cows help the tortoises. I'd show them the forbs my cows promote that tortoises need to eat. I'd show them the watering facilities the tortoises use. I'd show them the barriers of brush with tortoise burrows that protect them from ravens. It would be on the tip of my tongue with every breath.
This idea that there is a trade-off between the public's interest in tortoises and my desire to run a cattle ranch is delusional nature worship. Bundy is blowing a huge opportunity trying to explain the split Federal estate Wayne Hage established in law. He can do that after he blows the premise of the supposed "public interest."
He probably hasn’t thought of it. Email him.
I don’t have a clue how to do that, but it’s probably possible. :>)
Too late. He needed to get started ten years ago to collect the validated data to prove my tortoise habitat improvements are effective by statistically-designed experiments. Then there's setting up the business with all the paperwork, "i"'s crossed and "t"'s dotted etc.
After I spent four years writing and publishing that book, I spent about a year traveling that region and I couldn't get their brains out of park. 'What I'm doing is just fine. We should all go back to forty years ago' was about the size of it.
These issues are complex, and what I posted was an idealized representation, but the serious point is how easily a free-enterprise system can do a better job for less. What pisses me to no end is how stupid this gets. Too many people are so used to the fascist system we have that they have no idea how a free market is supposed to work. They get worried that the managers might get rich doing it. They fear their loss of covetous control. They have no trust for their neighbor, and trust their crooked agents instead.
So after having had the ranchers, including Wayne Hage, tell me that my ideas are superior but that 'It'll never happen,' I went home to build an unarguably superior example of environmental management. Which I've done. Our property is now the cleanest piece of native plant habitat in the Western United States, and I can't get the experts who verbally admit that it is true to write it down. So I wrote a 525 page photographic book showing what we did so that they can acknowledge it because the proof is right in the images. They don't read it. So I'll be putting it all online because I don't know what else to do. All in all, I've put over two million dollars of labor into the effort. Meanwhile, grandstanding idiots run all about shrieking about the Agenda 21 with no idea what to do to satisfy the public claim for environmental management while at the same time getting a crooked government out of the business. I'm still doing it, but it's pretty discouraging.
I live on a mini-farm at one of God’s greenest, cleanest locations in the USA.
Congratulations on your book.
I might check it out. I’m in the east (Ohio Valley), so if it doesn’t apply, that’s fine.
What was the link?
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.
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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
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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.
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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.
nothing in there about anything other than the federal enclave
The place the Gummint couldn’t turn a profit on?
What I mean by "clean" is free of non-native species. We have 363 plant species on the property that has measured 99.6% native or better for the last five years, including the tiny annual groundcovers nobody seems to care about.
The book site is naturalprocess.net. If you truly want to read it send me an email, but please read the first chapter before making that decision because it is a brain-baker, not because it is intrinsically difficult but because the perspective is alien to the way we see things now. The rest is much easier.
I know you would not disagree.
He does mention it.(see post #35).
Nevada is not on an equal footing with Massachusetts with regard to land ownership. I know you would not disagree.
Actually, I would disagree, for the reason listed in the same post.
That's Orwell-speak for "equal footing." When a State legislature cannot control the property, it lacks the powers as Madison describes in Federalist 45: "The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite."
IOW, for a State not to have control of its territory is not to have been admitted on an equal footing.
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