The U.S. Constitution Has Answers to 
Mismanagement and Destruction of the People's Land

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.

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

Growth of Federal Land Holdings 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:

Alaska 69% Nevada 85%
Arizona 75% New Mexico 47%
California 49% Oregon 54%
Colorado 38% Utah 71%
Idaho 64% Washington 35%
Montana 31% Wyoming 53%

Compare this with the earlier states to join the union which have from 1% to 10% federal land ownership.

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)

An Arizona legislator lays wildfire blame directly on federal government

Sylvia Allen, President Pro Tempore of the Arizona State Senate, recently wrote this about what just became the worst forest wildfire in Arizona history:

"I once again must express my anger at the lack of forest management that, for the last 20 years, has turned our forests into a tinderbox of undergrowth, small trees, brush, and downed trees. In some areas of the forest around Alpine, the undergrowth was so thick that you could not even walk across the forest floor.

"In 1990, Arizona had a thriving forest industry with 15 sawmills bringing $550 million a year to the Arizona economy and employing thousands of rural Arizona citizens. Many rural ranching families ran cattle across the forest land, helping to keep the undergrowth down and cleaned out. Over the years, their allotment numbers have been cut to the point that many have gone out of business.

"Living through the "timber wars" of the 1990s, I know that the Forest Service was knee deep in lawsuits brought by environmentalist groups pushing for efforts to list the Mexican Spotted Owl and the Goshawk as endangered species. The timber companies hung on as long as they could, spending thousands of dollars defending their legal contracts in court. Eventually, one by one, they went out of business, and their infrastructure was sold at auction.

"There was a time when the Forest Service operated in the black with a very healthy return on their investment. The natural resources that were developed on Forest Service lands created jobs and products benefitting the American people. They were the only federal agency that accomplished such things.

"All that changed when misinformation, faulty science, lawsuits, and downright lies were used to shut down our forests by those environmental groups that built multi-million-dollar businesses putting families out of work. These flawed environmental philosophies have made their way into federal policies that have now resulted in an unhealthy forest environment.

"The catastrophic fires of the last few years are an indication of the health and vitality of our forests. This overgrowth of trees has depleted our watersheds. If the current disastrous Wallow fire burns for the next 15 days, it will put as much pollution into our air as 700 million cars running 24 hours a day for a year.

"We must return to common-sense forest management. The federal government held 12 western states hostage and only agreed to grant us statehood if we gave up control of 60% of our land, assuring the states that they (the states) would have use of the land and be able to use the resources within the boundaries of our respective states. The federal government has broken its word."

Again, the answer to our most serious challenges is not for the federal government to debate 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 in these unnecessary fires.



Earl Taylor, Jr.