Usurping State Property Rights

hreidWe have reached a moment in Western history when, despite all appearances, no meaningful public debate over issues is possible.   Not only do progressives  no longer understand what the issues are, they are incapable of even suspecting that they do not understand, or of caring whether they do. Take for example Senator Harry Reid, who recently labeled patriotic Americans domestic terrorists,  for daring to take a stand  against a militarized BLM attempting to rustle cattle from a ranch in Hairball’s own state.

The issue at stake is not whether Cliven Bundy has a right to graze his cattle on government land but whether or not the federal government even has a claim to that land. Bundy’s argument that he doesn’t owe the federal government money for grazing rights on land that rightfully belongs to the sovereign state of Nevada, is valid.

Regardless of the BLM’s, and by extension, the Obama administration’s  insistence that Nevada’s land was ceded to the federal government when Nevada became a state in 1864, the Constitution, common law, and relevant Supreme Court rulings have found otherwise.

In the decision handed down by the Supreme Court in the case of Escanaba Co. v. City of Chicago, 107 U.S. 678, 689 (1883), an important constitutionally based concept known as the “equal footing doctrine” was described as “Equality of constitutional right and power is the condition of all the States of the Union, old and new.”    Basically, this principle requires that any state added to the union do so on equal footing with the 13 original states.   As reported by the legal website Justia, “Since the admission of Tennessee in 1796, Congress has included in each State’s act of admission a clause providing that the State enters the Union ‘on an equal footing with the original States in all respects whatever.’”

An issue very similar to that in Cliven Bundy’s situation was at the heart of a Supreme Court case of Pollard’s Lessee v. Hagan, decided in 1845.  Pollard’s Lessee involved conflicting claims by the United States and Alabama of ownership of certain partially inundated lands on the shore of the Gulf of Mexico in Alabama.  Rather than an issue of mere land ownership, the Court saw the question as one concerning sovereignty and jurisdiction of the States.   They ruled that Alabama  was entitled to the sovereignty and jurisdiction over all the territory within her limits, subject to common law and that they controlled the navigable waters and soils under them, subject to the rights surrendered by the Constitution and that no compact that might be made between Alabama and the US government would diminish or enlarge those rights.

However, the situation in Nevada is a little more complicated.   In 1864, Congress passed an act to allow the people of the Territory of Nevada to create a constitution and form the State of Nevada, illegally adding a clause  that said that the people of Nevada must give up any rights to the land owned by the federal government within Nevada, which happened to be over 90% of the land.  But, the clause also stated that this was only valid until Congress waived it, in which case,  the land would go to the state.   But Congress never waived the clause.   In 1979, the Nevada legislature did pass a resolution  of sorts detailing the above with claims that Nevada has ‘a moral claim’ to the land.

That Congressional  clause was illegal under the “Equal Footing Doctrine,” the 1845 Supreme Court decision in Pollard’s Lessee vs. Hagan, as well as under our Constitution.   Article I, Section 8, Clause 17 [the enclave clause]  of the Constitution lays out the limits of Congressional authority which includes purchasing land from a state with the state’s legislative approval, for the ‘erection of forts, magazines, arsenals, dock-yards and other useful buildings.’

Can any agency of the federal government come into a state and purchase land without state authorization as any other buyer would?   Where did the idea come from that there is a right for individuals and other entities to sell to the federal government without requiring the consent of the state legislature?    Part of the answer to this misconception lay in two Supreme Court decisions, Kohn and Ft. Leavenworth, which expanded federal authority beyond a strict reading of the Enclave Clause.  Activist judges  “discovered”   a federal right of eminent domain that was neither specifically nor implicitly granted by the people in the Constitution.  It was an act of sheer judicial arrogance by men in high places.

While these two decisions did expand federal authority,  they have been misread and misused to the point of giving the federal government complete authority to acquire lands within the boundary of states without that state’s Consent.   But, a close reading of these cases show the right of eminent domain granted in the decisions was only for purposes “essential” to the Federal government’s “independent existence and perpetuity” or “for the special purposes named.”  These “essential purposes” are the constitutionally enumerated purposes in Article I, section 8, clause 17 of the constitution and in no way gave the federal government uncontrolled authority to purchase lands within a state.   Eminent domain is a sovereign power. Therefore, it can only be exercised when government is acting within its sovereign power as enumerated under the constitution. Any other federal purchases must still be authorized by the state legislature.

“A constitution embodies the fundamental principles of a government. Our constitution, adopted by the sovereign power, is amendable by that power only. To the constitution all laws, executive actions, and judicial decisions must conform, as it is the creator of the powers exercised by the departments of government.   The Constitution does not give us our rights and liberties, it only guarantees them.  The people had all their rights and liberties before they made the Constitution.  The Constitution was formed, among other purposes, to make the people’s liberties secure — secure not only as against foreign attack but against oppression by their own government. They set specific limits upon their national government and upon the States, and reserved to themselves all powers that they did not grant. The Ninth Amendment declares: ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’ ” Sol Bloom

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