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
NOTE: 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.