The U.S. Constitution and Federal Lands

Dear Friends,

Many of us who live in the western states have been touched directly by the devastating wildfires which continue to burn out of control. The lives and fortunes of thousands of people are being altered or destroyed by the destruction. The economies of huge areas will never be the same in our lifetime and hundreds of homes and hundreds of thousands of acres of beautiful forestlands lie in waste, no more to be visited and enjoyed as recreational areas or summer or year-round residences, and no more to be the means of livelihood for thousands of families.

There will be much debate about who or what is at fault and what should be done in the future. Business blames environmentalists and environmentalists blame business. Politicians get into the act on one side or the other. It is as though no one has really come up with the best answer yet and so we must keep searching and talking.

But for those students of good government who have studied the Founders' formula for "a perfect union" and for "domestic tranquility", the answer is ringing ever so loudly in our ears. It is an answer so profound yet so powerful, so obvious yet so silent, that the loud and the boisterous, the proud and the philosophers, seem to pass over it with disdain or just neglect. The answer, the simple answer, lies within the paragraphs of the Constitution of the United States. Once again, the Founders had the answer 200 years ago to another crucial modern-day problem.

Development of the Earth Mostly by Private Endeavor

John Locke pointed out that the human family originally received the planet earth as a common gift and that mankind was given the capacity and responsibility to improve it. Said he:

"God, who hath given the world to men in common, hath also given them reason to make use of it to the best advantage of life and convenience."

Then Locke pointed out that man received the commandment from his Creator to "subdue" the earth and "have dominion" over it.

Dr. Skousen points out:

"But because dominion means control, and control requires exclusiveness, private rights in property became an inescapable necessity or an inherent aspect of subduing the earth and bringing it under dominion.

"It is obvious that if there were no such thing as 'ownership' in property, which means legally protected exclusiveness, there would be no subduing or extensive development of the resources of the earth." (See discussion in The Five Thousand Year Leap, pp. 169-172)

In other words, the highest level of prosperity occurs when there is private ownership of property. Mankind will be more willing to work and subdue if there is a reward for doing so-a reward which no one has a claim to but the owner himself. Ownership also allows one to develop so that others may enjoy. It allows jobs to be created so that more people can earn a living. Private ownership of property enables a nation to become more productive and wealthy than any other system.

Many philosophers throughout history have asked the question: Will not community ownership of property benefit more people than private ownership? John Locke answers this powerfully. He said under a system of common ownership, when one person wants to make use of something that is owned by "everyone", he must ask all the owners' permission to use it. If this were required, Locke says, the man would starve to death before he got permission of all! Hence, private ownership of property is the best means to fulfill the mandate of God to "subdue and gain dominion." (Ibid., p. 172)

The Founders allow Very Little Property to be Owned by the National Government

With the power of private property firmly in mind the Founders clearly set forth necessary limitations in the Constitution so that the national government will not accumulate much property itself. The thought was to leave it to the people who will use, care for, develop, subdue, and gain dominion over it in a manner which will bless the lives of all the people and lead to greater and greater permanent prosperity.

There were, however, a few reasons to have the national government own property: for a seat of government, for military uses, and for needful buildings. This is the very limited power given to Congress in the Constitution:

    "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" (Art I, Sect. 8, Clause 17)

An earlier draft in the Convention merely read, "to exercise like authority over all places purchased for forts, etc." Madison noted that "Eldridge Gerry contended that this power might be made use of to enslave any particular State by buying up its territory and that the strongholds proposed would be a means of awing the State into an undue obedience to the General Government..."

Madison said Mr. King then moved to "to insert after the word 'purchased' the words 'by the consent of the Legislature of the State.' This would certainly make the power safe."

Even as limited as the Founders could make it, this clause allowing the National Government to own and control property within a state continued to bother some. They thought, in time, mischief would develop. Listen to what Joseph Story, Justice of the Supreme Court, wrote in his famous Commentaries in 1833 about this particular clause. It is as though he foresaw some of the incredible regulations which are strangling the efforts of the people to "subdue and gain dominion over" huge sections of land in our country:

"And yet this clause did not escape the common fate of most of the powers of the national government. It was represented, as peculiarly dangerous. It may, it was said, become a sort of public sanctuary, with exclusive privileges and immunities of every sort. It may be the very spot for the establishment of tyranny, mid of refuge of the oppressors of the people. The inhabitants will be answerable to no laws, except those of congress. A powerful army may be here kept on foot; and the most oppressive and sanguinary laws may be passed to govern the district. Nay, at the distance of fourteen years after the constitution had quietly gone into operation, and this power had been acted upon with a moderation, as commendable, as it ought to be satisfactory, a learned commentator expressed regret at the extent of the power, and intimated in no inexplicit terms his fears for the future. 'A system of laws,' says he, 'incompatible with the nature and principles of a representative democracy, though not likely to be introduced at once, may be matured by degrees, and diffuse its influence through the states, and finally lay the foundation of the most important changes in the nature of the federal government. Let foreigners be enabled to hold lands, and transmit them by inheritance, or devise; let the preference to males, and the rights or primogeniture he revived with the doctrine of entails; and aristocracy will neither want a ladder to climb by, nor a base for its support.'" (Quoted in The Founders' Constitution, vol. 3, p. 237)

Dr. Skousen Explains the Growth of Federal Power in Violation of the Constitution

It would also appear that this provision gives each state the right to assume title to all lands within its boundaries which the federal government is not using for the purposes specified in this section.

But what about new states coming into the Union where most of the territory consists of federal public lands? The Northwest Ordinance of 1787 declared that all new states would come into the Union on a basis of complete equality or equal footing with the original thirteen states. Therefore it was assumed that as soon as a new territory was granted statehood, the people of that state would acquire title to every acre of land other than a very small percentage granted to the federal government for the "erection of forts, magazines, arsenals, dock yards, and other needful buildings."

But Congress did not allow this to happen. When Ohio was admitted into the Union in 1903, the government retained title to all of the public lands but assured the people that Ohio would acquire jurisdiction as soon as these lands could be sold to help pay off the national debt. This, then, became the established policy for new states:

  1. The federal government would retain all ungranted public lands.
  2. The government 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.

As a result of this policy, all of the states east of the Mississippi, and those included in the Louisiana Purchase, eventually acquired all but a very small percentage of the land lying within their state boundaries.

However, when the territory of the western states was acquired from Mexico, Congress radically digressed from the Constitution by virtually eliminating the sale or disposal of federal lands. The general policy was to permanently retain major portions of each of the western states for purposes not listed in the Constitution. This policy resulted in the government becoming the permanent owner and manager of over 35 percent of the American landmass. At the present time, vast areas within the boundaries of these states are permanently designated as part of the federal domain for national forests, national parks, national monuments, coal and oil reserves, lands leased for profit to ranchers or farmers, and huge tracts of land with valuable resources completely locked up as "wilderness areas."

Here is the amount of land in each of the western states still held by the federal government: (these figures do not include Indian reservations)

Arizona 45% New Mexico 35%
California 45% Oregon 52%
Colorado 36% Utah 66%
Idaho 64% Washington 30%
Montana 30% Wyoming 50%
Nevada 87%

The most flagrant example of all, however, is found in the conditions under which Alaska was admitted to the Union in 1959. The people were only allowed to occupy approximately 4 percent of their state.

Of course, the government should have exclusive jurisdiction over those lands acquired for the purposes listed in the Constitution. As Madison stated:

"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."

It is obvious that the federal government is currently occupying millions of acres within certain states without the concurrence of those states. (See The Making of America, p. 458-459)

The Answer to Destructive Wildfires in the Western United States

Again, the answer to our most serious challenges is not to debate for years whether or not trees should be thinned out, whether or not ground cover should be periodically burned off, whether or not timber should be cut and replanted. These discussions do not belong in the federal sphere at all. They belong with people who will own and care for their own land, knowing they will be held responsible for any damage they might cause to a neighbor by mismanaging their land.

The answer then is to turn the land back to the states and to millions of people. Studies have always shown that privately and state held land always had fewer fires, is cleaner, and produces more revenue than the land held by the federal government.

Our thoughts and prayers are with those who have lost so much. May we be more successful in restoring our Constitution.

Sincerely,

Earl Taylor, Jr.