I am new to this site, and am impressed with what I see to be a great resource.
An issue that has intrigued me since the last Sagebrush Rebellion, concerns the concept of "public lands", the Constitutionality of the concept (which I don't see), the abuse of power by the government, the blackmailing of the Western States to enter the Union on an "unequal footing" with the other States. Has there been any discussion of this in this site? I didn't see anything in a quick "look around", but land use issues are a constant issue for us Westerners, and I would like to know more of the history of the issue, and the Constitutional justification for the governments stealing of State lands.
Permalink Reply by Publius Huldah on http://www.freedom21.org/Newsletters/NL-2012/nl-041412-1.pdf
Phillip! You will love Henry Lamb's article, "Who owns the West?"
Note the Law which the State of Utah has passed and her Governor signed! They are going to use eminent domain to reclaim "federal" lands in Utah if the federal government hasn't voluntarily turned them over to the State by 2014.
It was a black day for this Country when the first Roosevelt came here. That family has been a curse on our Country.
Your State (California) may be already too far gone to resurrect. But at least other States can do this.
Permalink Reply by Phillip J. Barker on Dear Publius, I read of this (by Lamb) in a copy of the "Range Magazine", which is a good source of information on this and other Western issues with the Government. Of course, all these issues originate in the "illegal" (in my opinion) land grab by the Government when the Western Territories became States.
You are correct in your opinion of Kalifornia. It would likely be better to have the Fed's than the State in charge of public lands here. But, that is a practical matter, not a legal one.
Thanks again for your interest in this! It is hard to get the attention of people from States not affected by the concept of "federal lands". It is a regional issue, but has national consequences.
Permalink Reply by Susan Kline on Suggested reading: "American Nightmare" by Randal O'Toole Senior Fellow CATO Institute
The book discovers the nature and causes of the real estate bubble, it's collapse through the mechanisms and policies of exclusionary zoning, growth management, smart growth, sustainability, government fiscal policy, demographic manipulation, foreign architectural and planning influence, elitist distortions and federal attempts at social justice. I'm leaving out the details; this list could be longer. He tells convincingly how real estate is the major driver in our economy and may well have been the trigger, if not the sufficient cause, of our recent economic depression. It is fascinating in the thorough detail and scholarly argument.
O'Toole will be speaking at the Camarillo (CA)
Public Library on June 25. See attachment.
Ticket to Ride.docx, 17 KB Permalink Reply by Jack Coleman on H.R.5995
Latest Title: To designate and expand wilderness areas in Olympic National Forest in the State of Washington, and to designate certain rivers in Olympic National Forest and Olympic National Park as wild and scenic rivers, and for other purposes.
Sponsor: Rep Dicks, Norman D. [WA-6] (introduced 6/21/2012) Cosponsors (None)
Latest Major Action: 6/21/2012 Referred to House committee. Status: Referred to the House Committee on Natural Resources.
By Mr. DICKS:
H.R. 5995.
Congress has the power to enact this legislation pursuant
to the following:
Article I, section 8 and Article IV, section 3 of the
Constitution of the United States grant Congress the
authority to enact this bill.
Section 8 - Powers of Congress
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
Article IV - The States
New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
The proposal would designate 126,554 acres as new wilderness in Olympic National Forest, which would make them unharvestable, and would designate 19 rivers and seven tributaries as wild and scenic.
An additional 5,346 acres potentially would become wilderness if the U.S. Forest Service completes restoration under current management plans.
Land that would be preserved includes 93,959 acres of old-growth trees, Behan said.
Is this law Constitutional?
Permalink Reply by Mark on Short answer is No it is NOT Constitutional but more importantly, we have to be able to SHOW that it is not Constitutional. So, we begin with the alleged authority Mr Dicks cites haphazardly. Dicks cites Art 1 Sec 8 (which are the enumerated powers but fails to cite WHICH enumerated power he is relying upon. Is he going to establish a Post office, create a Mint, train soldiers? So let us presume He is relying upon the 17th Clause of Art 1, Sec 8 which states in relevant part;
"To exercise exclusive Legislation in all Cases whatsoever, ...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;"
Dicks also cites Art 4, Sec 3 (presumably 2nd clause unless he plans to establish a new State) which states ;
The 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."
Dicks overlooks the simple fact that wildlife preserve, national parks, fish and game etc are NOT among the enumerated powers. He is not legislating for a dockyard, arsenal, Fort, etc so Clause 17 is moot. As far as Art 4 , Sec 3, Cl 2 is concerned; once States join the union as independent States with their own government and citizenship, the federal jurisdiction ends. While Alaska and Hawaii were still US Territories, many US Code sections defined the term "State" as including Puerto Rico, The US Virgin Islands, Guam, American Samoa, and the Territories of Alaska and Hawaii.." Once Alaska and Hawaii were entered into the union (around 1958) those two territories were dropped from those various definitions. So you see, at the federal legislative level a State which has it's own government and citizens is now SUPPOSED to be on equal footing with for example Virginia or Missouri. Therefore, since Art 1 Sec 8 Cl 17 pertains to federal enclaves with a SPECIFIED purpose (dockyards, arsenals, forts, etc) and further, since those are NOT the purpose of the proposed acreage, then their is no Constitutional authority for the legislation. It is mere usurpation and deserves to be treated as such.
Since you are a new member, you may find these links helpful. First, Read Article 1, Section 8 Clauses 1-18 of the Constitution and point to the clause which grants Congress power over national parks, wildlife, trees, birds, fish and game?
Then here is a paper which discusses those enumerated powers which you just read.
Finally, here is a link to a list of short essays that will have you at the top of your Constitutional game in no time.
Permalink Reply by Publius Huldah on Very good, Mark!
Permalink Reply by William Eugene on United States Attorney Manual page 664 describes Art. 1:8:17 authority. They are, or should be, fully aware that they lack authority to claim these lands. It is simply relied upon that we are ignorant of facts and that we won't challenge them on it.
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm...
Permalink Reply by Publius Huldah on The Constitution is properly explained by The Federalist Papers. We do not permit the federal government - in this case, the Executive Branch - to determine the scope of its own powers.
Thomas Jefferson said that - that's not PH talking. PH never claims status as an independent authority. She is merely the mouthpiece of those who are.
Permalink Reply by Jack Coleman on Many thanks for the info Mark,
Section 8 - Powers of Congress
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
Welfare
welfare n. 1. health, happiness, or prosperity; well-being. [<ME wel faren, to fare well] Source: AHD
This would be what Dicks is probably referring to.
Welfare in today's context also means organized efforts on the part of public or private organizations to benefit the poor, or simply public assistance. This is not the meaning of the word as used in the Constitution.
.
Permalink Reply by Phillip J. Barker on Unfortunately, THE SCOTUS has time and again, relative to the "concept of public lands", accepted decisions of Congress and the Executive branch as Constitutional. Example:
The Supreme Court has affirmed the primacy of Federal control over public lands. In Kleppe v. New Mexico, 426 U.S. 529, 540 (1976), the Court again stated that the power of the Federal government over the public lands is "without limitations." Kleppe, 426 U.S. at 539. Under the Property Clause "Congress exercises the powers both of a proprietor and of a legislature over the public domain." Kleppe v. New Mexico, 426 U.S. 529, 540 (1976).
Permalink Reply by Brimstone on They probably never used the argument that under Art. 1 Sec.8 the feds had no right to own the land in the first place. As long as the premise that the Feds own the land legally holds then the next to last clause in Sec. 8 seems to apply. But then what do I know as I am certainly not qualified to give an opinion.
Permalink Reply by Phillip J. Barker on That argument has been used, but to no avail. Part of the problem exists because of the different ways in which territories came to be. Originally, the colonies ceded land to the government for the purpose of its sale to cover war debts. Those lands generally ended up in the private property domain. But, then the Louisiana Purchase came to pass, and the government acquired land. Most of those lands ended up in the private domain. Then, came the acquisition of Western territories thru treaty with Mexico, and the government acquired more territory. The blackmail of the Western States, and the creation of permanent government holdings resulted. The government has never considered its acquisitions, and current holdings as subject to the Constitutional constraints of Art. 1 Sec. 8. The SCOTUS has agreed. The States will have to fight this battle without the assistance of the Federal Courts. The question will be what strategy to utilize.
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