Reviving The Constitution Part 3: Federal "Property."

The drama in Nevada these past couple of weeks, as the federal Bureau of Land Management attempted to dispossess a peaceable rancher for the heinous offense of not having donated to Dingy Harry Reid, has spotlighted a curious aspect of the powers of Congress to acquire land.

Rancher Cliven Bundy's cattle made use of open land claimed by the federal government. Neither of those things is much out of the ordinary. Western ranchers have long pastured their animals on "open range." More, as the feds claim 84% of the land in the state of Nevada, there aren't many options for such a rancher. But in this case, there were covetous eyes on that pasturage: a group of Chinese investors who sought to turn it into a solar energy farm. For them to get their way, Bundy and his cattle had to go.

Since the Supreme Court's infamous Kelo v. New London decision, it's been deemed acceptable for a government to seize land from a private owner and transfer it to yet another private entity, on the rationale that such involuntary transfers can be made to serve a "public purpose." This isn't the place to rake over that decision again; suffice it to say that the popular outcry against it sufficed to persuade many states to enact "anti-Kelo" statutes forbidding the practice to their governments. But a major aspect of real property law went unaddressed: one that goes to the heart of the enumerated powers doctrine according to which the states agreed to the Constitution.

Is it Constitutionally permitted for the federal government to acquire land for any arbitrary purpose or none?

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Certain clauses in Article I, Section 8 authorize Congress to acquire land: "The Congress shall have power:"

• "To establish post offices and post roads;"
• "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, dockyards, and other needful buildings;"

If the Constitution is to be taken seriously and literally, Congress has no authority to acquire land except for the enumerated purposes. (As for that "other needful buildings" clause, a building can only be "needful" if it's required for the exercise of one of the other enumerated powers.)

Mindful of this, Congress under Thomas Jefferson, the most freedom-minded of the Founding Fathers, originally balked when asked to consider the Louisiana Purchase:

The purchase of the territory of Louisiana took place during the presidency of Thomas Jefferson. At the time, the purchase faced domestic opposition because it was thought to be unconstitutional. Although he agreed that the U.S. Constitution did not contain provisions for acquiring territory, Jefferson decided to go ahead with the purchase anyway in order to remove France's presence in the region and to protect both U.S. trade access to the port of New Orleans and free passage on the Mississippi River....

The American purchase of the Louisiana territory was not accomplished without domestic opposition. Jefferson's philosophical consistency was in question because of his strict interpretation of the Constitution. Many people believed he, and other Jeffersonians such as James Madison, were being hypocritical by doing something they surely would have argued against with Alexander Hamilton. The Federalists strongly opposed the purchase, favoring close relations with Britain over closer ties to Napoleon, and were concerned that the United States had paid a large sum of money just to declare war on Spain.

Both Federalists and Jeffersonians were concerned about whether the purchase was unconstitutional. Many members of the United States House of Representatives opposed the purchase. Majority Leader John Randolph led the opposition. The House called for a vote to deny the request for the purchase, but it failed by two votes, 59–57.

The transfer was effectuated under a treaty ratified by the Senate. More, the adjustment of a nation's borders does not compel the conclusion that its government owns the newly acquired land. Thus, Jefferson's action passed muster. Even so, the dispute about its validity has never entirely ceased.

However, the land thus added to the United States was not deemed the property of the federal government. Any portion of the Purchase not already homesteaded nor otherwise recognized as privately owned went "into the common." An interested private party could stake out a portion of it, register his claim with the nearest land office, and develop it as he saw fit, becoming its owner under the common law as we inherited it from England.

Thomas Jefferson, the strictest of the strict constructionists, would not have had it any other way.

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The Louisiana Purchase was only the first negotiated addition of territory to the United States. Others, arising from wars or treaties, would soon follow. Yet it was not until relatively late in the nation's history that the federal government adopted the posture that it could exercise the rights associated with ownership of land for a purpose not mentioned in Article I, Section 8. More, the conceit is fan-danced by an exceedingly thin rationale: that "federal land" is in reality "owned by American citizens represented by the Federal government."

Such an assertion answers to none of the usual characteristics of ownership. If We the People are the true owners of federal lands, why are we restricted in their use? Why can we not homestead portions of them, turning such portions into private property? Why does the federal government, rather than "American citizens," possess the sole privilege of exercising the all-important power to exclude undesired aliens from access to those lands? (A fair number of persons in southern Arizona would like answers to that last question.)

There are, of course, other considerations arising from the explicitly purposive property-acquisition clauses of Article I Section 8:

• Which of the enumerated powers of Congress authorizes its assertion of an owner's rights over approximately 28% of the land area of the United States?
• What "forts, magazines, arsenals, dockyards, and other needful buildings," in the context of Congress's enumerated powers, make that 28% appropriately federal property?
• Where in the Constitution is any branch of the federal government awarded the power to dispossess private owners for the sake of a "national monument," or some "endangered species?"

Ultimately, the question is one of strict versus loose construction. If the Constitution permits only those exertions of authority explicitly stated in its text, then the entire federal edifice of land "management" in all its forms is unConstitutional. Alternately, if the Constitution permits the federal government to do whatever is not explicitly forbidden to it, then Congress can appropriate lands and treat them as federal property without reference to an authorized, purposeful use.

Loose constructionists seldom trouble themselves about the implications of their stance. It hallows the seizure of private property "for public use" regardless of whether the subsequent actions implied by the stated use are ever undertaken. It sanctions the internment of the West Coast Japanese during World War II. It blesses the creation of a federal penal code of indefinite length and complexity, which criminalizes actions that have been deemed legal and acceptable throughout human history.. It permits the arbitrary redefinition of who is and who is not an American citizen, and of what rights other than those explicitly guaranteed by the Bill of Rights a citizen possesses.

And it smiles upon the efforts of the Bureau of Land Management, through its armed hirelings, to dispossess a private rancher whose family business has continued uninterrupted in one place for more than a century, so that Dingy Harry Reid and his son might turn a fast buck selling that rancher's spread to the Chinese.