By Bradley Harrington
NOTE: This is the second of two columns discussing the constitutionality of federal land ownership. You can find the first column here: “Fedzilla’s Land Grabs, Part I.”
“The Constitution was, from its very origin, contemplated to be the frame of a national government, of special and enumerated powers, and not of general and unlimited powers.” — Justice Joseph Story, “Commentaries on the Constitution of the United States,” 1833 —
As mentioned last week (“Fedzilla’s Land Grabs, Part I,” WTE, July 29), let’s continue our examination of Fedzilla’s assaults on both the United States Constitution and its gross mismanagement of the actual “federal” lands it’s currently in charge of.
But first, let’s get it straight regarding just what our Constitution is and what it represents: The Founders’ attempt to strictly limit the role of the federal government.
If you want to gauge just how far down the intellectual ladder we’ve slid in the last 200 years, however, get a load of this: “I’m not aware of anything in the Constitution that would preclude the federal government from owning land in these Western states.”
Barack Obama’s Hypothesis of the Unlimited State, right? Wrong … That was John Malcolm, a legal scholar for the Heritage Foundation, a conservative think-tank (“Napolitano: Washington lacks constitutional right to own land in Western states,”, http://www.politifact.com/punditfact/, April 23, 2014.) A man who, after all of his studies, has still not grasped the fact that it’s not what the Constitution precludes on the federal level that matters, but what it specifically authorizes instead. With “friends” such as these, who needs enemies?
No, the original plan was crystal-clear from the beginning: With the passage of the Northwest Ordinance by the Confederation Congress in 1787, any new states admitted to the Union were to be admitted on an “equal footing with the original States in all respects whatever.”
And, while that ordinance was passed prior to the Constitution’s ratification in 1789, it bears mentioning that it was reaffirmed by the new United States Congress and signed by President Washington that same year and also reaffirmed by the Supreme Court (Strader v. Graham) in 1851.
And, since the original states maintained control of their lands even after the Founding (with the exceptions enumerated in the Enclave Clause), it therefore follows that any new state, once admitted to the Union, should have its previously-federally-managed territories turned over to it as well.
Indeed, in a squabble between Alabama and the Feds over which entity should have control of Alabama’s navigable waters, the court ruled in favor of Alabama, on the very basis of that “Equal Footing” doctrine (see Pollard’s Lessee v. Hagan, 1845).
No, the opinion of the court couldn’t have been any clearer: “The United States never held any municipal sovereignty, jurisdiction, or right of soil in and to the territory of which Alabama, or any of the new States, were formed, except for temporary purposes …” How much clearer do you need it to get?
Unfortunately, however, the Supreme Court’s respect for the land rights of new states was not to last: Over the last 150 years, the court has slowly but surely reversed its course completely, until now the court believes that Fedzilla can “own” whatever it feels like owning.
And if you don’t think that’s true, get a load of this: “The [Property] Clause must be given an expansive reading, for the power over the public lands thus entrusted to Congress is without limitations … and Congress’ complete authority over the public lands includes the power to regulate and protect the wildlife living there.” (Kleppe v. New Mexico, 1976.)
But claiming the sky is green just doesn’t make it so — it merely demonstrates that, by 1976, the court had obliterated what little had remained of our constitutional checks and balances. This from the entity that was supposed to protect them.
And, in like fashion, ideas became events. How well has Fedzilla been “protecting” your lands? As I write, hundreds of thousands of acres of national forests, along with hundreds of people’s homes, are burning down to the ground.
Why? Because Fedzilla, in all of its infinite wisdom, banned controlled burns for nearly a century — and millions of acres, along with thousands upon thousands of homes, have since been toasted to cinders as a result.
And more: “According to the Forest Service, another 190 million acres remain at high risk of wildfire, though that number could be anywhere from 90 to 200 million acres (GAO 2003c, 14).” (“Who is Minding the Federal Estate?”, Holly Fretwell, 2009.)
Yep, do the math: That’s 14-31 percent of all the land Fedzilla manages … Never mind the trillions of dollars we’ve blown in the last century to transform these forests into tinderboxes.
So, Dear Reader, what form of “protection” from wildfires do you actually have? To live in a desert? Or to just hope and pray that your home isn’t in the path of the next one?
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 August 5, 2016. Here is this column’s original downloadable PDF file.