BLM v. the Constitution
The Bureau of Land Management (BLM) has created controversies in two States. The Cliven Bundy ranch affair, or the Battle of Bunkerville, is one. The BLM trying to seize 90,000 acres of bottomland on the Texas side of the Red River is another. The legal standing of the BLM is different in the two cases. If the relevant statutes are valid, the BLM would prevail against Cliven Bundy. The BLM could not prevail against Texas ranchers who have deeds and titles to those 90,000 acres. But the BLM is on far shakier ground than that. Its very reason for being goes against the Constitution.
The BLM and statutory law
Dr. Byron Schlomach of the Goldwater Institute’s Center for Economic Prosperity explained where the BLM stands to Theresa Mull of Human Events. Concerning Cliven Bundy, Schlomach did not address Bundy’s failure to pay grazing fees to the BLM for twenty years. He addressed only the BLM’s refusal to renew grazing leases to protect the so-called desert tortoise. He concludes: if the BLM wants Cliven Bundy and all his neighbors off that land, for any reason or no reason, none of us can do anything about it. Only Congress can say how it wants those lands managed.
The Texas matter does involve the taking of private property. Here Schlomach invokes Amendment V. It reads in relevant part:
Private property shall [not] be taken for public use, without just compensation.
So, the doctor says, the BLM must buy those ranchers out.
All very well. But Schlomach ignores one key fact: the BLM has no authority to own those vast tracts of land. Or to say it more strictly, Congress lacks that authority.
The BLM, Congress, and the Constitution
The United States Constitution is a written contract among the States. As such it tells what public uses the Congress may put any land, and how it may acquire that land.
Article I, Section 8 sets forth most of the Powers of Congress. Those powers include:
- Borrowing money.
- Regulating interstate and foreign commerce, and commerce with sovereign Native American tribes.
- Setting uniform laws of naturalization and bankruptcy.
- Ordaining and establishing federal courts lower than the Supreme Court.
- Coining money and regulating its value.
- Fixing standards of weights and measures.
- Punishing counterfeiters.
- Issuing copyrights and patents.
- Establishing post offices and “post roads.” For the sake of argument, let us take “post roads” to include federal highways, and the system of mail delivery aboard airliners.
- Punishing pirates captured in international waters.
- Declaring war and writing rules of engagement.
- Raising and supporting armies and a navy, and writing Codes of Military Justice for the same.
- Calling out State militias, but only for three specific purposes.
- Setting standards for militia recruitment, training and discipline.
And then we read Clause 17. It authorizes two ways for Congress to acquire land, and the uses to which Congress may put that land. First, it authorizes Congress to ask two or more States to cede enough land to make a district (not more than ten miles square) for building a federal capital city. Second, it authorizes Congress to buy land in any State, with the consent of the legislature of that State. And Congress may use the land it buys to support its exercise of its enumerated powers. This is the full meaning of “the erection of forts, magazines, arsenals, dockyards, and other needful buildings.”
A needful building is any building the government needs to carry out an enumerated power. Clause 17 names four specific “needful building” types: forts, magazines, arsenals, and dockyards. An air base is a “needful building” within the meaning of Clause 17. So is a post office. So also is a tax office.
But a land office is not a needful building. Why not?
Because nowhere, either in Article I Section 8 or in any other Amendment having the words “Congress shall have the power” in it, does the Constitution authorize the Congress to either:
- Acquire land as a territory and then deliberately withhold it from any State that might nominally include it. (Which evidently the federal government did in Nevada and other new States after the Mexican War.) Or:
- Use said land, or any other land, for grazing forage.
Note that again: not one article, either in the original Constitution or of amendment thereto, says, or implies, that the Congress shall have the power “to exercise exclusive legislation” over any lands for the management of grazing forage, crop production, or any other purpose.
Any suggestion that the Congress may in fact acquire land in any manner other than those that Clause 17 prescribes, or to use that land for purposes other than the exercise of its enumerated powers, grants unlimited power to the federal government. And that sort of grant is totally inappropriate to a free people.
Thus far no commentator, except perhaps for Judge Andrew P. Napolitano (formerly of the Superior Court of the State of New Jersey), has recognized this key fact.
Cliven Bundy is in the perfect position, if he gets a good lawyer, to argue squarely against this clear excess of the authority of Congress and the BLM. He literally cannot prevail any other way. (He might be able to recover damages for cattle the BLM slaughtered and buried en masse; the BLM would then deduct that from the million dollars he owes it.) And that alone would force the Supreme Court to address the issue of Congressional authority.
Someone should advise Cliven Bundy, in addition to “stay away from the press,” to file a writ of quo warranto, to ask the BLM by what authority it does anything in the State of Nevada. The Texas ranchers might have standing to file for a similar writ. If the only remedy a court will offer them is a lump-sum buyout of their titles and deeds, then if they want to keep the land itself, they must contest the government’s power to take it under any terms, “just” or not.
Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.
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[…] BLM v. the Constitution […]
For two hundred some odd years we’ve relied on our judicial system to help us interpret the Constitution. Are your interpretations (straightforward as they are) supported by any case law you’re aware of? If so, could you cite some such cases? If not, could you address some of the contradictory cases and explain why you think they either do not apply or are incorrect?
I’m not sure case law would help either way, or constitute a hard-and-fast rule. History has, after all, known the Supreme Court to reverse itself on occasion, often to the detriment of the Constitution and the rule of law. I cite two cases that arose after the establishment of the Federal Reserve. One case said Congress had no authority to set up a lender-of-last-resort of fiat money. Then another case said it had. That reversal came about on no strength save a change of personnel.
That is why I accord little respect to the doctrine of stare decisis. Courts can make mistakes.
“I’m not sure case law would help either way, or constitute a hard-and-fast rule.”
Depends on the court rendering the decision. I believe you are in New Jersey. Your New Jersey Supreme Court is the highest court in the state and its rulings interpreting your constitution and statutes are the law of the law. The same is true for decisions from your federal judicial district and circuit, and more importantly the US Supreme Court.
“That is why I accord little respect to the doctrine of stare decisis.”
I occasionally get the impression that you accord it no respect where you disagree. Do you acknowledge, as the Supreme Court held in Marbury v. Madison 1803, that the constitution was drafted to give it the power of judicial review? You do seem to accept certain Supreme Court decisions where you agree. I would like to understand whether and how you determine which decisions you will not recognize as the law of the land, if indeed that is the case.
“Courts can make mistakes.”
And, as you recognize, they can correct themselves.
“often to the detriment of the Constitution and the rule of law.”
You make broad claims like this frequently. How do you justify this one? We know about repulsive mistakes like Korematsu and Dredd Scott. Would you name some decisions that meet your description?
You may interpret my remarks however you like, if it means that much to you. But I already know you have little regard for individual liberty, when it gets in the way of your Progressive goals.
“Note that again: not one article, either in the original Constitution or of amendment thereto, says, or implies, that the Congress shall have the power “to exercise exclusive legislation” over any lands for the management of grazing forage, crop production, or any other purpose.”
Sorry, but this is simply not true.
Article IV, Sec. 3, Clause 2 link to law.cornell.edu gives the United States unlimited power (“without limitation”) over land “acquired by the federal government as it sees fit, and to exercise exclusive authority to decide on whether or not to dispose of those lands.” link to law.umaryland.edu
You may wish to have a look at Kleppe v. New Mexico, 426 U.S. 529, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976) link to supreme.justia.com
In other words, they at Cornell and U-Md. think the Constitution is a mere thing of wax.
I dispute their interpretation.
Uh… the link to Cornell is the US Constitution and the U-Md one is a link to a Congressional Research Service (a non-partisan legal analysis agency) report, which, as far as I can tell, is not a controversial report.
Sometimes I get the impression you don’t read the things people post to you.
You read the Constitution differently from how I read it. No surprise there. To you the Constitution is “a living document.” To me the Constitution is a static document, that one must interpret in light of the customs that prevailed at the time of writing.
“To me the Constitution is a static document, that one must interpret in light of the customs that prevailed at the time of writing.”
Whatever interpretative philosophy you espouse, in the vast majority of cases the act of interpretation is done by analogy to prior case law. Do you agree? If so, what cases would you suggest are analogous to this situation and thus supportive of your position. If not, why not? Are you suggesting that this case is special? If so, why? Or are you suggesting that the vast majority of judicial interpretation has utilized an incorrect method? What method would you prefer?
There’s just one thing wrong with prior case law, and it’s a nearly insurmountable problem: judges are only human. Lately I have seen judges do some strange things. Then, too, there’s McCullough v. Maryland, the case that caused such alarm to President Jefferson.
The prevailing theory of “case law” adds up to: “The Constitution means whatever the Supreme Court says it means, any time it says it.”
“The prevailing theory of “case law” adds up to: “The Constitution means whatever the Supreme Court says it means, any time it says it.””
I guess I’m just not sure what you’re proposing instead. You say that “the Constitution is a static document, that one must interpret in light of the customs that prevailed at the time of writing” but you don’t say how that interpretation should be carried out. The only currently-practiced model of judicial interpretation I’m aware of relies on prior case law. Is there another I’m not aware of? Are you proposing a novel method?
Ideally, the Constitution should be a static document, interpretable in the original context and with the meanings its world had at the time of writing.
In practice it has turned into Thomas Jefferson’s “mere thing of wax.” That is what Mark Levin meant by “black robed oligarchs.”
I am proposing an objective method, one that would enable, even prompt, the Court to reverse errors the Court, as previously constituted, might have made in the past.
Do you, for example, accept the case of Scott v. Sandford as valid case law, or even as a valid decision at the time then-Chief Justice Roger B. Taney handed it down?
No, I wouldn’t expect you to. That decision started a war.
So it would appear that war – flat-out, blood-and-flames war – is a resort, if the last resort, to reverse an erroneous earlier decision.
That’s my problem with stare decisis and over-reliance on case law.
Stare decisis is a tool used to better manage the finite resources of our judicial system. Courts can only hear so many cases in a week/month/year and if they constantly had to revisit the same issue each time they came up, nothing would ever get done. To the extent you’re arguing that courts should spend more time reconsidering past decisions (either by spending less time considering novel issues or by increasing judicial resources), I think that’s a very interesting position worth considering. Times change much fast in today’s modern society than they did a century or two ago and it’s not unreasonable to think that the deference we give to the past should be proportionately decreased.
But I still think that’s an issue separate from the methods used. And I’m still not sure what alternate method you’re proposing. You suggest an “objective method,” but what does this mean in practice? Scott v. Sandford is bad law, I agree, roughly because we (society, courts, whoever) have decided that people aren’t property. The trouble comes from extending these decisions to new areas of the law. People aren’t property. Are clones (in a hypothetical future where such technology exists)? Are cloned organs? Are organs in a brain-dead patient? How about extremely intelligent primates? Few of these issues can be resolved by an “objective method” because there’s no objective basis from which to begin. Instead we consider prior decisions and the reasons for arriving at those decisions and try to extend that rationale to new situations. This is what courts do every day and I don’t see any other way for them to proceed.
All of which is relevant, I think, because in the article you make claims such as “A needful building is any building the government needs to carry out an enumerated power. Clause 17 names four specific “needful building” types: forts, magazines, arsenals, and dockyards. An air base is a “needful building” within the meaning of Clause 17. So is a post office. So also is a tax office. But a land office is not a needful building.” That may all be true, but I don’t think it can carry much weight, especially in a judicial context and in view of the long tradition of jurisprudence in this county, without some reference to prior case law. Surely this isn’t the first time that a court has considered what is and is not a needful building. In prior cases, what has and has not been considered a needful building? On what grounds did those courts reach their decision? None of this needs to be decisive (stare decisis is not absolute and past decisions can always be reversed) but it ought to be considered and discussed.
I dispute your contention that failure to defer properly to the past is always reasonable.
The only reason you reject Scott v. Sandford is that you don’t like the result. Yet that was a case, and was a part of valid case law, for the few years that intervened from the handing-down of that decision, to the surrender by General Robert E. Lee at Appomattox Court House in Virginia – and arguably to the Siege of Fort Sumter.
More broadly: a written document, with words whose meanings we preserve, is the only guarantee of liberty. Those who argue most vociferously for changing the meaning of the Constitution as the meanings of its words changed, are those who have the least respect for property, liberty, and even of life itself. For instance: “general welfare,” as used in the Preamble and in Article I, Section 8, Clause 1, meant merely “the well-being of a union of States.” But today, thanks to theorists on your side of the debate, “general welfare” means some minimal level of human sustenance that the people now expect the government to provide, laying aside completely the question of who among their fellow citizens and lawful residents is going to pay for that sustenance. And whenever I try to point out that “general welfare” did not connote or suggest handing out freebies to people for no good reason other than to buy their votes, I can count on you, for instance, to point to that phrease “general welfare” in Article I Section 8 Clause 1 and say, “‘Welfare’ is in the Constitution! Now kwitcherbiotchin’ and pay your taxes!”
Of course, I could point out that the same people who insist on this “modern understanding” of the phrase “general welfare,” deliberately ignore that other phrase that appears in those same places, “common defense.” But that’s far less important than the willful distortion of original intent, which that phrase “general welfare,” and its two interpretations, exemplify.
The Supreme Court itself fell into the same trap. Originally they said “to coin money” meant “to stamp metal.” A few years later the Court reversed itself. Good-bye sound money; hello Federal Reserve Accounting Unit Dollars. I’ll let you put together the acronym.
And so we come to the phrases, the abuse of which gives us a Bureau of Land Management. What is a “needful building”? A “needful building” ought to be “one serving a military or administrative purpose in line with the enumerated powers.” Instead, a “needful building” is any building or other infrastructure that politicians deem necessary to their own special projects or visions. Likewise, “necessary and proper” now means “necessary and proper to whatever the Congress sets its collective mind to.”
In this manner, politicians have proved Thomas Jefferson right. In the wake of McCullough v. Maryland he said the Constitution “is now become a mere thing of wax.” And so it has.
And you have now said you are comfortable with that.
Some check, and some balance, must exist, or the Constitution does indeed mean whatever the Supreme Court says it means, any time it says it. And this worship at the shrine of “case law” means the Supreme Court sets itself on a course, which might be a course of error, from which it can never self-correct. The case of Brown v. Topeka Board of Education ought to tell you even the Court does not wish to bind itself to the earlier decisions of the predecessors of current Justices, once they find those decisions repugnant to their own ethics. The trouble is, they substitute their own ethics for the Constitution. And ethical values, sadly, are subject to change. Especially if atheism becomes the order of the day in civil government.