Sorry for the length, but I had to tie a lot of material together…
After our Constitution was written it was sent to the legislatures of the 13 original states for debate and possible ratification. It is important to understand that it was by an act of these state legislatures agreeing to this Constitution that our federal government came into existence. Had they not agreed to it, agreed to cede certain defined powers over to the federal government, we would not have a federal government in Washington D.C. today.
Among those who opposed the Constitution, one of the primary reasons for opposition was a concern over the loss of states’ rights. Over the course of the ratification debates those in favor of the proposed Constitution wrote a series of articles in an effort to garner support for the Constitution among the people. These articles became known as The Federalist Papers.
Now why would they worry about whether the people supported or opposed the Constitution if it were solely up to the state legislatures to ratify it? Allow me to try to answer that, quoting from Federalist 46, written by James Madison. Madison states, “The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes. The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone …”
Madison continued by saying, “If, therefore, as has been elsewhere remarked, the people should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administration, as will overcome all their antecedent propensities. And in that case, the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due; but even in that case the State governments could have little to apprehend, because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered.”
Earlier, in Federalist 17, Alexander Hamilton had written, “AN OBJECTION, of a nature different from that which has been stated and answered, in my last address, may perhaps be likewise urged against the principle of legislation for the individual citizens of America. It may be said that it would tend to render the government of the Union too powerful, and to enable it to absorb those residuary authorities, which it might be judged proper to leave with the States for local purposes. Allowing the utmost latitude to the love of power which any reasonable man can require, I confess I am at a loss to discover what temptation the persons intrusted with the administration of the general government could ever feel to divest the States of the authorities of that description.”
So, it would seem that the Founders had established a system in which all the powers and sovereignty of the states were to remain intact. But that was for the original 13 states that ratified the Constitution, how was this to apply to states that would later join the Union?
Before I continue you must realize why so many people came to this country we now call the United States. Of the original settlers many came here as entrepreneurs or to seek freedom from religious persecution. But as word spread of the abundance of land, of resources, and of opportunity, many simply came here to work towards owning their own piece of land which they were free to call their own.
You see, back in England, from whence many of the colonists came, they were not allowed to own land, the land belonged to the sovereign, the King, and they were allowed to work it with a portion of their yield being for their own sustenance, with the rest going to the King. This condition of serfdom did not grant them ownership and they wanted to escape to a new land where they would be the rightful masters of their own land.
If you look up serf or serfdom in the dictionary it is defined as a form of bondage, or slavery and it was common whenever a country had a King for a ruler. It mattered not whether the King was cruel or benevolent, the fact was that you were a subject and you had no rights, especially when it came to ownership of land.
But our Founders were influenced by men with more liberal views, views which clashed with many of the commonly held beliefs regarding rights. Chief among these liberal thinkers was John Locke, whose Second Treatise on Civil Government was instrumental in forming the beliefs of men such as Thomas Jefferson and James Madison.
Locke, although not directly mentioning Kings or monarchs, spoke about freedom from absolute power. In Section 23 of his treatise he states, “This freedom from absolute, arbitrary power, is so necessary to, and closely joined with a man’s preservation, that he cannot part with it, but by what forfeits his preservation and life together: for a man, not having the power of his own life, cannot, by compact, or his own consent, enslave himself to any one, nor put himself under the absolute, arbitrary power of another, to take away his life, when he pleases. No body can give more power than he has himself; and he that cannot take away his own life, cannot give another power over it.”
But Locke also talked about property, and by what right it might belong to an individual. In Section 27 of his treatise he states, “Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labour something annexed to it, that excludes the common right of other men: for this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others.”
If you have ever taken the time to read through our Constitution you will find that not once is state sovereignty mentioned, and land is only mentioned a couple times. In Article 1, Section 8 the Constitution states that Congress has the power “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, dock-Yards, and other needful Buildings…”
And Article 4, Section 3 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 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.”
It is this second clause to which I would like to draw your attention. It states that Congress shall have the power to make all needful rules and regulations respecting the Territory or other property belonging to the United States.
According to Article 1 Section 8 the Constitution says that the government may acquire land for forts, magazines, arsenals, dock-yards and other needful buildings. But to what extent and how far may it extend its jurisdiction when it comes to land?
What the Constitution does not say is the process by which new states may be admitted, and from whence they may originate. After the Revolutionary War the U.S. and Britain signed the Treaty of Paris in 1783. Besides an end to hostilities, the treaty also gave the U.S. a great deal of new territory. In fact all the land westward up to the Mississippi River became part of the United State, more than doubling it in land mass.
Prior to the ratification of the Constitution, the Continental Congress, under the Articles of Confederation, passed the Land Ordinance of 1785. The purpose of this ordinance was to raise money for the federal government by selling portions of this land acquired by the Treaty of Paris.
What happens when you sell something? Someone gives you money for an item, be it clothing, a vehicle, foodstuffs, or even land. In return for that money you transfer ownership of said item to the purchaser. So the land sold to these settlers in the Northwest Territory became the land owners. Follow me so far? Also during Colonial Times people could come to this country and stake a claim on a piece of property and declare it their own for their home, or farm. This practice continued and was used extensively during the California Gold Rush. The legal basis for these mining claims was that public property is granted to the first person who puts it to beneficial use.
Getting back to the point at hand, the fact is that aside from the original 13 colonies/states that ratified the Constitution, all the land that now comprises the United States was either acquired through purchase, or by conquest.
These acquisitions became territories of the United States, and subsequently were divided and became the individual states that we know today. Over the course of years they were admitted as states and therefore fall under the protection of the Constitution just as does the original 13 colonies/states which ratified it.
Therefore, Article 4 Section 2 of the Constitution says, “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” Therefore, if the citizens of the original 13 colonies/states were entitled to property, then so were the citizens of these newly admitted states.
Our Founders had a far different concept of property than we do today. In an essay published in the National Gazette in 1792, James Madison stated this about the word property, “This term in its particular application means ‘that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”
Madison continued by saying, “In the former sense, a man’s land, or merchandize, or money is called his property. In the latter sense, a man has property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has property very dear to him in the safety and liberty of his person.”
Madison later states that “Government is instituted to protect property of every sort… This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.”
Why all this history and talk of land ownership? Well it has to do with the events which recently unfolded in Nevada in regards to the Bureau of Land Management versus one Cliven Bundy. Mr. Bundy, and his family, have been homesteading this land since 1877. In 1989 the Fish and Wildlife Service lists the desert tortoise as an endangered species and designated hundreds of thousands of acres for conservation efforts. Prior to this Mr. Bundy had been paying grazing fees to graze his cattle on this land but stopped in 1993 because he considered the government’s effort to declare the land off limits for grazing a land grab. He has since had his permit revoked but has however continued to graze his cattle on this so-called protected land.
It’s a lot more complicated than all that, but I fear I would bore you with too many details. But that’s it in a nutshell. The Bureau of Land Management sent in forces to confiscate Mr. Bundy’s cattle and force him off the land. He stood his ground, members of the militia gathered together to support him, and the government, for the time being, has backed down. But Senator Harry Reid of Nevada has declared that ‘this is not over.’
Now this is where it gets interesting. It has been said that the son of Harry Reid is a lawyer for a firm that has brokered a deal with a Chinese corporation to build a solar panel farm on the land that is currently occupied by who? By Cliven Bundy of course.
There are two differing opinions, of which I have encountered, on this issue. One declares that the land was never really Mr. Bundy’s to begin with. That the land which Nevada is a part of, was sold to the U.S. government after the end of the Mexican American War and the signing of the Treaty of Guadalupe Hidalgo. Those who support this position use one clause from the Nevada State Constitution in support of their argument. That clause reads, ” That the people inhabiting said territory do agree and declare, that they forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States; and that lands belonging to citizens of the United States, residing without the said state.”
While that may sound like it declares that the people do not own the land within the state, it is imperative that you understand a few things. Nevada became a state in 1864. Mr. Bundy claims his family has been homesteading that land since 1877. First thing you must understand is what is homesteading?
Beginning in the 1860’s the U.S. Government began passing what are known as Homesteading Acts. These acts sold land to applicants at little or no cost. The very first of these acts was signed by President Abraham Lincoln in 1862. It was probably under this particular act that the family of Cliven Bundy gained possession of this land. And you have to remember what I said about selling something, when the seller receives funds from the buyer, the land passes into the buyers possession and becomes their property. And remember what Madison said, that government is instituted to PROTECT property of all sort.
The second thing people must understand about that clause from the Nevada State Constitution is the meaning of the word unappropriated. Unappropriated is defined as: 1. Not set apart or voted for some purpose or use, as money, revenues, etc. 2. Not taken into possession by any person.
At the time Mr. Bundy’s family acquired that land it could not have been set apart, or voted for some other purpose or use by the federal government, otherwise a fraud would have been committed by our government selling land it was not authorized to sell. So the land must have been legally sold to the Bundy family, and therefore it WAS/IS their land.
If it was/is their land, then the federal government has no right to come in and declare it off limits for their use, regardless of whether an endangered tortoise lives there or not. The only way in which the government may acquire land that is privately owned is through the use of eminent domain. The Fifth Amendment to the Constitution declares, “…nor shall private property be taken for public use, without just compensation.”
I could go on and on about the abuses of eminent domain rulings, but it was originally intended that the appropriation of private land by the government be for the general public welfare. The judges and courts which ruled upon these cases should balance the needs of the property owners versus the public welfare the acquisition of their land requires. I don’t know about you, but the survival of an endangered species of tortoise does not meet up to the loss of a ranchers right to graze his cattle, and the subsequent loss of beef for sale for consumers. Besides, no such case has ever been brought before the courts, the federal government simply declared this land to be protected for the survival of a tortoise and Mr. Bundy appears only to be defending what his family legally acquired 137 years ago.
There is one subject I have been itching to write about for quite some time, but up until now haven’t found a suitable time to do so, that is the concept of allodial titles. According to wikipedia, and other legal sources, allodial titles constitute ownership of real property (land, buildings and fixtures) that are independent of any superior landlord. Few states now actually offer allodial titles to landowners, and the process for obtaining one is both difficult and time consuming, if not expensive as well. However most states do not because historically an allodial title distinguishes the landowner because it exempts them from duties upon the land they own. If allodial titles were allowed in the all the states the states could not legally collect property tax from the landowners.
But this is where it gets a bit complicated, legally speaking. Most of you who own property, do not own the title to it, you own a ‘deed’ to the land. In legal speak a deed is merely the color of title, and not an actual document stating ownership. In Blacks Legal Dictionary, the word color is defined as “an appearance or semblance, as distinguished from that which is real; a prima facie, a deceptive appearance.” Color of title is defined as, “that which in appearance is title but is not title in fact or law.” Write v. Matron 18 How. (U.S.) 50
An allodial title, or a land patent, is the only true ownership of land. Patents are issued between sovereigns…and deeds are executed by persons and private corporation. (Leading Fighter v. Country of Gregory) A patent is the highest evident of title, and is conclusive, against the government and all claiming under junior titles, until it is set aside or annulled by some judicial tribunal. (Stone v. U.S.) The patent (land patent) is the only evidence of the legal fee simple title (or Allodial). (McConnell v. Wilcox)
For the most part, governments no longer confer allodial titles to land. Therefore if we do not truly own the land we have purportedly purchased with our hard earned income, then who does? It would seem from all the rules and regulations our government passes on how we can utilize our own property that the government owns them. If that be the case, are we not merely serfs, the same as which our ancestors fled their homelands to be free from? If that is the case then all that Madison said about property was a lie, or worse, our government has usurped, (to use something without the right to do so) powers which it was never intended they have.
All I know is that Cliven Bundy was only exerting his right to defend what was rightfully his against a government run amok with power. Our Founders did the same and left us an inheritance worth defending at all costs. We have shamed them and disgraced ourselves because we have let our government grow far more intrusive and oppressive than the one they fought to free themselves from. I hope you are all happy!