For a painfully long time now, our federal masters and their judicial enablers have ignored and, to my way of thinking, flagrantly violated the Constitution with impunity. All too often, Supreme Court rulings have served to override common sense, constitutionality and original intent.
And so long as black-robed, unelected and
unaccountable judicial oligarchs, aka judges–as well as the submissive states
themselves–allow “judicial supremacy” to trump “constitutional supremacy” on a
whole host of foundational constitutional issues, our economic growth will be
hobbled, our liberties diminished, state sovereignty further degraded, constitutional
order imperiled, common sense and Rule of Law abandoned.
To wit, per Art 1.8.17 of the Constitution and
provisions of the Northwest Ordinance of 1787, and despite a veritable cesspool
of clubby, contrived and revisionist court rulings over the years through which
I was barely able to wade, it appears glaringly obvious to me that our federal
overseers are occupying millions of otherwise productive acres within the
several states without the “concurrence” of those states and without
constitutional justification.
Article 1.8.17 (“Enclave Clause”) granted power to
Congress “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 [i.e. the District of Columbia], 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,
dockyards, and other needful buildings.” Crystal-clear what the original
meaning is here despite the shamelessly self-serving litany of subsequent spin
on the part of our judicial overlords, lap dogs of the federal government.
Clearly this clause meant that the people of the
states empowered Congress to exercise complete jurisdiction and authority over
all lands or facilities purchased within a state, provided it was with the
consent of the legislature of that state, and that such lands would be used "for
the erection of forts, magazines, arsenals, dock yards, and other needful
buildings.” Clearly implied in this clause is that the several states, the
immediate fiduciary agents of the people, reserve the right to assume title to
all lands within their borders which are not being used by the federal
government for the specific purposes provided in the clause, that being “the
erection of forts, magazines, arsenals, dock yards, and other needful
buildings.”
It is also important to note that nowhere in the
Constitution is the federal government granted the enumerated power of complete
jurisdiction and authority over state territory; thus, state retention and
ownership of public lands stems from the 10th Amendment which reserves all
rights to the states which are not specifically granted to Congress. The
twisted and carefully crafted Delphic court rulings notwithstanding, the
original meaning seems abundantly clear to me.
Art 4.3.1 allowed a mechanism for the formation and
admission of new states into the union, and Art 4.3.2 described the extent of
congressional authority over federal territory within those states.
Subsequently, the Supreme Court ruled that federal property applies only to the
territory at the time of the Constitution’s adoption and is considered public
land only until that territory is granted statehood and the national debt
incurred by the Revolutionary War is paid. In other words, temporary federal
control over those lands.
In accordance with the Northwest Ordinance of 1787,
which was re-enacted after the Constitution’s ratification, all new states were
to be admitted to the union on the basis of full equality with the original
thirteen states. It was generally understood that as territories were granted
statehood, the people of those states would acquire title to all lands within
their state boundaries—except, of course, those lands granted to the feds for
those well-defined purposes cited in Art 1.8.17.
To help pay down the national debt, Congress assured
the states of full title to those lands not used for federally sanctioned
purposes when that land was sold off. The following then became the established
policy for new states:
1. The feds would retain all ungranted public lands.
2. The feds guaranteed that it would dispose of
these lands as soon as possible.
3. The new state would acquire jurisdiction over
these lands as fast as they were sold to private individuals.
4. States would be admitted on the basis of “equal
footing” with the original 13 states (each of which retained complete
ownership/control over their respective territories.As a result, all states east of the Mississippi and those comprising the Louisiana Purchase eventually acquired title to all but a very small portion of the land lying within their state boundaries.
However, following our war with Mexico, Congress
inexplicably digressed from this policy and virtually eliminated the sale or
disposal of federal lands in the western states. This resulted in Congress’s
retaining major portions of those state lands, this in direct
contravention of the Constitution and of the Northwest Ordinance. Essentially,
the federal government became the sole owner and manager of nearly 30%, or a
whopping 650 million acres, of America’s landmass, for the constitutionally
unspecified purposes of maintaining national forests, national parks, national
monuments, Indian reservations, coal and oil reserves, lands leased to farmers
and ranchers, and resources-rich so-called “wilderness areas”. And, of course,
the cost to taxpayers for maintaining the sprawling federal bureaucracy in
order to manage these federally controlled lands is in the billions of dollars.
Federal defenders of this overreach breathlessly
point to the so-called “property clause” (Art 4.3.2) which provides that
“Congress shall have power to dispose of and make any needful rules and
regulations respecting the territory or other property belonging to the United
States and any territory or property belonging to the United States.” Clearly,
doesn't this create a convenient constitutional ambiguity by contradicting the
original intent of Art 1.8.17? Does this not exact restrictions on the western
states, which had never been imposed on earlier states? So much for states
being admitted into the union on “equal footing” and “full equality” with
earlier states. Is federal retention of 30% of America’s real estate really a
“necessary and proper” exercise of federal powers? For me to believe that would
require a willful suspension of common sense.
To give you an idea of how much state land is now
imperially held by the feds, check this out: NV 85%, AL 70%, UT, 60%, OR 53%,
AZ 47%, CA 45%, WY 42%, NM 42%, CO 37%, and poor Alaska 96%! Note: 65% of
federal land holdings are located west of the Mississippi and a paltry 1% of
all federally controlled land in the country is currently being utilized for
those specific purposes cited in Art 1.8.17. One must wonder why these
lands are still being held by the feds. Pay off the Revolutionary War debt?
Gee, I don’t think so. Lofty, if not entirely contrived, constitutional
justifications? Or, more likely, the relentless federal grasp for power and,
today, a way to placate a host of environmental allies by denying the states
and the country access to those dastardly climate-warming pollutants such as oil and gas.
Regarding the Enclave Clause, James Madison stated
that “the public money expended on such places, and the public property
deposited in them, require that they should be exempt from the authority of the
particular State. Nor would it be proper for the places on which the security
of the entire Union may depend to be in any degree dependent on a particular
member of it. All objections and scruples are here also obviated by requiring
the concurrence of the States concerned in every such establishment.” But, have
the courts sought the concurrence of the states? Nope.
Clearly, the federal government is occupying
millions of acres without the “concurrence” of those states, but maintains
their grip with the twisted and self-serving judicial sanction of federal
Courts intent upon expanding and strengthening federal power.
So, what is the recourse of the several states? My
opinion, which is shared by many other originalists, is that in keeping with
the doctrine of state sovereignty, original intent and the 10th Amendment,
states should simply legislatively assume title of all lands not being utilized
by the federal government as specified in the Enclave Clause. Of course, to
placate the courts and public opinion, states should first sue the federal
government to acquire title. And since the states will not prevail in such a
lopsided judicial struggle, they should then rightfully and unhesitatingly
assert their 10th Amendment rights by immediately assuming direct ownership and
control of what I have dubbed the “royal federal reserves” lying within their
state boundaries.
But, do the chastened, weak-kneed, and heavily
bribed states have the backbone to hazard the restoration of their
constitutional sovereignty and honor? Ah, yes..That’s the burning question.
The constitutional issue aside for a moment, in
truth the achievement of energy independence alone should provide ample
motivation for the states and their citizens to step up and take back their land,
which is illegally held by the feds. And should the states fail to assert their
rights under the original constitution, they should quietly accept their
bondage and compliantly move on with their drab, submissive lives.
“An injustice unchallenged is justice
denied. “Author Unknown
POSTSCRIPT: Contingent upon Nevada's 1864 admittance into the union as
a State was federal insistence that unappropriated lands be permanently
ceded to the federal government. In 1996 Nevadans
overwhelmingly approved removal of this provision from the State
Constitution, in effect amending their State Constitution. Unfortunately and surprisingly, the wording of this referendum required Congress to officially approve
the amendment. THUS, to prevent further acrimony and possible bloodletting, it would seem obvious that NOW is the time for
Congress to step up and approve the transfer of land. AND if Congress
doesn't approve the transfer, then it seems abundantly clear that it is within Nevada's constitutional authority
to unilaterally assume ownership and control of those lands--with or without congressional sanction."I submit that an individual who breaks the law that his conscience tells him is unjust, and willingly accepts the penalty by staying in jail to arouse the conscience of the community over its injustice, it is in reality expressing the very highest respect for law." written by Martin Luther King, Jr from the Montgomery Jail.
