Property Pilfered Federally
The Constitution’s text, coupled with its history, shows that the federal government may own or have jurisdiction of property in limited ways.
Title to the land in Montana should have gone to the state as soon as Montana became a state in 1889. And the only real question is: Does the federal government owe us rent on that land since then?
Former State Senator Casey Emerson, 2002 Anno Domini
Background
The Declaration of Independence (1776) recognized the Creator. It acknowledged each person’s right to “Life, Liberty and the Pursuit of Happiness.” It also affirms that people are “...endowed by their creator with certain unalienable rights.” What are those endowed and unalienable rights? English jurist Sir William Blackstone wrote in 1766, “... these may be reduced to three key precepts: 1) the right of personal security or life; 2) the right of personal liberty; and, 3) the right of private property...” Beautiful words.
As we see from above, our rights derive in an equal manner from a Creator, not from the government. This acknowledgment is the foundation of the Constitution of the United States of America (1787). It secures those rights in alignment with Blackstone. The Fifth and Fourteenth Amendments to the Constitution further defined these elements in concert with the great English jurist. That is life, liberty, and property. See Frederick R. Smith Speaks, The Constitution: Property and Free Markets.
As one of the critical elements of a prosperous society, the right of its citizens to own and keep property ensures freedom. Property may be land, buildings, tangible objects, precious metals, or backed money (see below Money = Property). The 1787 Constitutional Convention considered this issue as related to the federal government. The Founders1 considered allowing the federal government to hold vast tracts of real estate. They understood that limiting the federal government required keeping land ownership at bay. As such, the Founders rejected the idea.
The enclave clause, Article I, Section 8, Clause 17, allows federal jurisdiction within state boundaries. The Constitution grants no authority to take parcels for flimsy reasons. The government must dispose of its property obtained outside Constitutional limits. That includes property acquired by international treaties.2 See Frederick R. Smith Speaks Treaties Torching the Constitution.
Article IV, Section 3, Clause 2 of the Constitution governs federal land ownership within state boundaries. There, the property clause gives Congress the ability to dispose of land. It does not provide for complete dominion to acquire land.3
The Constitution’s text, along with its history, shows that the federal government may own or have jurisdiction of land in limited ways. That is, acreage dedicated to one or more of the purposes enumerated. The 2005 Colorado Law Review, Volume 76, Number 2, is an excellent treatise about the federal property problem. That issue’s title is: “Federal Land Retention and the Constitution’s Property Clause - The Original Understanding.” It details the case of “Casey Emerson and the Modern Controversy.”4 Key excerpts are as follows:
Clarence A. (“Casey”) Emerson of Bozeman, Montana—a former state senator, retired high school teacher, and now a prominent local businessman—wants Montana to sue the federal government. Montana, like most other western states, is composed largely of federal land, and. Emerson, like many other Westerners, is fed up with federal land management. He wants that acreage given to the states. More specifically, he wants Montana’s federal lands deeded to the state government. Montanans, he says, can do a lot better managing local lands than bureaucrats in Washington, D.C.—who, if they care about Montana at all, are under enormous pressure from people who do not.
… The Constitution, he says, limits federal land ownership within existing states to post offices and post roads, the capital district, and items enumerated in the Enclave Clause: “Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.” He argues that the other relevant constitutional provision, the Property Clause, contemplates only land disposal and land management pending disposal.
… He believes Montanans cannot continue to suffer under federal land ownership policies. Those policies, he says, throw people out of work and bar them from their own backyards. In past years, he continues, federal policies have fostered over-cutting of timber; more recently, they have fostered undercutting—resulting in ravenous and polluting forest fires. He adds that the federal government harbors on its lands dangerous predators, such as wolves and grizzly bears that wander onto private property and threaten people and livestock. Local people, he says, would administer Montana lands far more responsibly.
Emerson’s position—that the Constitution, as originally understood, requires the federal government to transfer nearly all of its remaining land to the states—may not reflect current case law, but it is not unique. Indeed, after reviewing parts of the historical record, several legal commentators have reached conclusions more radical than Emerson’s. Those commentators argue that all permanent federal landholding within states and outside the Enclave Clause violates the true meaning of the Constitution and that such lands should be ceded to the respective state governments. This conclusion … it the “conservative” position—is challenged by “liberal” commentators who argue that the Management Power in the Property Clause (to “make all needful Rules and Regulations respecting” federal land) authorizes virtually unlimited federal authority to own acreage. At times, the exchange among commentators has been heated, with conservatives referring to federal land ownership as “national socialism” and liberals characterizing their opponents as “extremists.”
The enclave clause provides for “needful Buildings” and the “district” we know as the District of Columbia (DC). “Buildings” include improvements not limited to enclosed structures. It does not mean vast tracts of land. Before 1938, Supreme Court cases on federal enclaves involved areas of limited size. Those tracks of land or waterways complied with the enumerated purposes. Proper enclaves include military installations and navigational facilities under Congress’s commerce power. The exception to the enclave requirement is DC. That is one of the many reasons for not making it a state.
Money = Property
The recent events up north, where the Canadian government froze the bank accounts of truckers, is an example of how our overlords can abuse digital currency. Money of intrinsic value, such as gold as a medium of exchange, holds its purchasing status. Under that system, people can readily keep this precious metal at their secure location of choice without interference by the government and its partner, the banks. One ounce of gold could buy a nice suit 100 years ago... so it does today.
Today, we live with the government’s dollar created out of thin air (fiat currency). That process continuously reduces the value of money (see Frederick R. Smith Speaks Creature From Jekyll Island).
Congress could make our money valuable again with a stroke of a pen. That is, declaring extra-constitutional federal lands and associated minerals as backing for our money. Such a change might help make our money valuable again, like when gold reserves backed it. However, that would use resources outside the freedom precepts of the Constitution.
Cryptocurrency, another form of fiat currency, exists outside government control. A new alternative is the Goldback Dollar. This private currency uses a state-of-the-art manufacturing process that embeds actual gold in the bill. It promises a more practical “hands-on” gold as an exchange medium rather than gold bullion.
History of Property Assault
Franklin D. Roosevelt (FDR) failed in his famous effort to “pack the court” by expanding its size. FDR achieved his goals by nominating replacements for retiring justices. The 1937 retirement of Supreme Court Justice Willis Van Devanter5 created FDR’s first appointment opportunity. He chose then-Senator Hugo Black6 presumably as a reward for Black’s support of the New Deal. Black’s only judicial experience included two years as a part-time city court judge.
A good illustration is Black’s concurring opinion in the 1939 case of Coleman v. Miller. Black claimed that Congress had “exclusive power.” He disregarded both constitutional text and history over the entire constitutional amendment procedure. According to Black, Congress could do anything it wished, and the courts had no way of responding. If this notion had prevailed, Congress could modify the Constitution at will. Black persuaded three colleagues to agree, but Chief Justice Charles Evans Hughes7 had better sense. His decision for the court charted a short-lived moderate course. The subsequent reckless disregard of the Constitution has enabled the government to swallow up vast tracks of land. That is an assault of private and state property—and freedom.
Government Property Expansion
Power over the land gives dominion over people. When the government acquires land, the collectivists say it is for the “common good.” Such words are a part of the crummy narrative. Excessive government ownership usually means that the bureaucrat’s control enlarges while citizen freedom diminishes.
With 748,000 acres, Yosemite National Park is not a “needful Building.” It serves no purpose mentioned in the Constitution. Instead, it is a recreational and environmental preserve. It should have protection managed by California (ugh) or a fiduciary trust. The worst manager is a politicized federal government.
Still, in Collins v. Yosemite Park & Curry Co. (1938), the Supreme Court ruled for the federal government. It ruled that California’s transfer of Yosemite to the federal government was valid under the enclave clause. Only Justice James McReynolds8 dissented. Since that ruling, the court has permitted the federal government to own or control land almost without limitation.
People outside the American West do not appreciate the lasting damage of the Collins decision. It increased the dominion of federal bureaucrats and politicians with over 28 percent of American real estate. The federal government owns more than 80 percent of Nevada, more than 60 percent of Alaska, Idaho, Utah, and more than half of Oregon. There’s no reason for the federal government to own land outside the original intent. It is for political gain and federal land:
Locks-up precious resources needed for a sound economy
Results in less than stellar land management
Empowers a symbiotic association between bureaucracy and special interests, thus manipulating voters and officials within western states
Obstructs local self-government and distorts the balance of powers
Government Property for … Abortion!
Collectivists exhibit no shame in their disregard of the Constitution. They suggest the use of federal property if the Supreme Court overturns Roe. v. Wade. For example, the online leftist website “The 19th” on February 7, 2022, posted an article titled Experts say Biden could use executive powers to protect abortion access. It includes this morsel about David Cohen (professor at Drexel University’s Kline School of Law), who focuses on constitutional law and gender:
Cohen also suggested looking at whether the government could lease federal land to abortion clinics. In theory, those clinics could then operate within the borders of a state that has limited or even banned abortion. Since they would not be on state property, those clinics could be exempt from the state’s abortion laws and instead governed by only federal statute. (Similar approaches could be tried on reservation land, if tribal leaders also sought to maintain abortion access.)
A “living breathing Constitution” indeed.
Sources
The Original Constitution: What It Actually Said and Meant, Robert G. Natelson, 348 pages, Apis Books, 2015
1787: The Grand Convention, Clinton Rossiter, 443 pages, W.W. Norton & Company, May 1987
The American ideal of 1776: the twelve basic American principles, Hamilton Abert Long, 398 pages, Your Heritage Books, January 1976
Cogent author and publisher, Frederick R. Smith
Founders are those who played significant roles in the constitutional process. It included the framers (convention representatives), ratifiers, Federalists, and Anti-Federalists.
Article I, Section 8, Clause 17: 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: 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.
Today, the machine would brand Mr. Emerson as a xenophobic right-wing potential terrorist for spreading “misinformation.”
Willis Van Devanter (April 17, 1859 – February 8, 1941) was an American lawyer who served as an Associate Justice of the United States Supreme Court from 1910 to 1937.
Hugo Lafayette Black (February 27, 1886 – September 25, 1971) was an American lawyer, politician, and jurist who served as a U.S. Senator from 1927 to 1937 and as an Associate Justice of the Supreme Court of the United States from 1937 to 1971.
Charles Evans Hughes Sr. (April 11, 1862 – August 27, 1948) was an American statesman, politician, and jurist who served as the 11th chief justice of the United States from 1930 to 1941.
James Clark McReynolds (February 3, 1862 – August 24, 1946) was an American lawyer and judge from Tennessee who served as United States Attorney General under President Woodrow Wilson and as an Associate Justice of the Supreme Court of the United States.