By Bradley Harrington
NOTE: This is the first of two columns discussing the constitutionality of federal land ownership. You can find the second column here: “Fedzilla’s Land Grabs, Part II.”
“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.” — James Madison, “The Federalist No. 45,” 1788 —
When I stated last week that we should “sell off all unconstitutionally ‘owned’ federal lands” (July 22 WTE, “If I Were the President …”) I knew the reactions would be sharp.
Nor was I disappointed: “Earl,” an online reader, had this to say: “Your suggestion that federal lands be sold to pay down the national debt is one of the most offensive things I have read in this newspaper in my 33 years in Cheyenne… Our federal lands are a national treasure! … And, by the way, it is not unconstitutional for the federal government to own land!” (“Online comments,” WTE, July 22.)
To begin with, Earl, I never said it was “unconstitutional for the federal government to own land,” I said that what land the Feds possess that is “unconstitutionally owned” should be sold. That isn’t the same thing, so… It’s obviously time we examined these ideas a little closer.
When it comes to the Constitution and federal land, two key components need to be discussed:
■ Article I, Section 8, Clause 17 (“The Enclave Clause”): “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 the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.”
■ Article IV, Section 3, Clause 2 (“The Property Clause”): “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; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.”
Regarding the Enclave Clause, observe that the federal government is only authorized to control “such District” (Washington, D.C.) and “Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings” — nothing else.
Observe, also, that the Feds’ purchase of such places requires the consent of the State Legislature in which such lands reside.
Regarding the Property Clause, it does give Congress “the Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property of the United States” but –again — that would only apply to the lands the Feds possesses as authorized by the Enclave Clause, or the “other property” represented by territorial acquisition treaties as ratified by the Senate (such as the Louisiana Purchase). Nothing else.
Note, moreover, that the Property Clause only deals with management and disposal, not acquisition or retention, and certainly not for non-enumerated purposes not spelled out in the Enclave Clause.
Out here in the West, however, we’ve got Fedzilla “owning” portions of: Alaska, 62.1 percent; Arizona, 38.6 percent; California, 45.8 percent; Colorado, 35.9 percent; Idaho, 61.6 percent; Montana, 29 percent; Nevada, 84.9 percent; New Mexico, 34.7 percent; Oregon, 52.9 percent; Utah, 64.9 percent; Washington, 28.5 percent; and Wyoming, 48.4 percent.
At this juncture, it bears mentioning that, according to the 10th Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Translation: Whatever powers are not specifically enumerated to the federal government become the province of the states. Since the Constitution does not specifically enumerate federal land ownership outside of the stipulations of the Enclave Clause, Fedzilla’s “ownership” of such lands is unconstitutional. Period!
What should have happened — and what used to happen — is that as each territory became a state, the Feds ceded those territorial lands over to that state. In some cases, such as with Illinois, Arkansas and Missouri, states successfully recovered their large percentages of formerly-federally-owned territory. End of story.
So, what happened in between? How did we ever arrive at the point where Fedzilla now occupies over 635 million acres, i.e., 28 percent of the land mass of the nation?
And more: Since one of the major objections the advocates of this nonsense raise is that they feel the states won’t properly manage their land, just how well have these federal interlopers been managing their empire instead?
For those awful ugly answers, stay tuned for more to come in Part II. Trust me, it’s an absolute disaster on both counts.
Bradley Harrington is a computer technician and a writer who lives in Cheyenne. Email: firstname.lastname@example.org.
NOTE: This column was originally published in the “Wyoming Tribune Eagle” on July 29, 2016. Here is this column’s original downloadable PDF file.