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Can any agency of the federal government come into a state and purchase land without state authorization as any other buyer
would? Is it a private property right for a property owner to sell to the federal government? A proper reading of the Enclave
Clause shows the answer to both of these questions is, NO.
Had the founding fathers intended the federal government to have this authority they would never have included the Enclave
provision in the Constitution. Had the people believed the constitution would allow the federal government to acquire any
land it desired and displace the state's authority they would never have allowed their state to ratify the Constitution. Clearly,
issues other than private property rights must have been at stake, and those issues must have been of sufficient gravity to
compel the founders to include this clause and for the people to accept it.
There are many examples in which the Supreme Court has upheld the state's position to determine who can own and control
land within the boundary of a state. An example of this is in a case where a citizen of the State of California willed property
to the Federal government. The State, by act of the legislature, denied the transfer of title to the federal government. The
United States sued California to force the state to relinquish control of the land the federal government considered theirs.
The Supreme Court Ruled in favor of the state's position, disallowing the federal government to claim ownership of the willed
property. (Now go look at the fox case) where a similar case went before the supreme court with the same ruling from that
court,,
A portion of the statement in the court's decision may help us to understand; "California's decision (by act of the
legislature) to permit itself and its subordinate municipalities to be unlimited governmental beneficiaries under the wills
of its domiciliaries is based on a permissible distinction," In another passage, the Court elaborated on its view: "The
United States would have no claim here were it not for wills probated under California law. The Fox (United States v. Fox,
94 U.S. 315) case is only one of a long line of cases which have consistently held that part of the residue of sovereignty
retained by the states, a residue insured by the Tenth Amendment, is the power to determine the manner of testamentary transfer
of a domiciliary's property and the power to determine who may be made beneficiaries. It would be anomalous to hold that,
because of an amorphous doctrine of national sovereignty, federal constitutional law reached into a California statute and
made impotent that state's restrictions on the designation of beneficiaries."
The idea that states hold the power to determine the manner and context of transfers of property is the foundation of
statehood. This Statement by Thomas Jefferson is another example of our founders reasoning on this matter: "Can it be
thought that the Constitution be intended that for a shade or two of convenience, more or less, Congress should be authorized
to break down the most ancient and fundamental laws of the several states; such as those against Mortmain, the laws of Alienage,
the rules of descent, the acts of distribution, the laws of escheat and forfeiture, the laws of monopoly?" Nothing but
a necessity invincible by any other means, can justify such a prostitution of laws, which constitute the pillars of our whole
system of jurisprudence.
How have we gotten to the point where many will argue that to interfere with federal land acquisition is unconstitutional?
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.
These two activist court decisions known as, Kohl, and Ft. Leavenworth, did expand federal authority beyond a strict reading
of the Enclave Clause. In these two cases, the justices "discovered" a Federal right of eminent domain that was
neither specifically nor implicitly granted by the people in the Constitution. There is no doubt an expansion of authority
was granted by the Court. This was an act of sheer judicial arrogance by men in high places.( Judicial tyranny )
Although these decisions do expand federal authority, they have been misread to the point of giving the federal government
complete authority to acquire lands within the boundary of states without that state's Consent. This is a complete misreading
of the text of these decisions. A close reading of these cases shows 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. This close reading of the cases shows the court definitely did not
rule to allow 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.
"It cannot be presumed that any clause in the Constitution is intended to be without effect." Thomas Jefferson
spoke to the consequence of Federal usurpation of state's constitutional rights: "To take from the states all the powers
of self government, without regard to the special delegations and reservations solemnly agreed to in the federal compact is
not for the peace, happiness, or prosperity of those states."
Now let's examine a couple of relevant questions. Why are federal agencies able to purchase lands within states without
the legislature's approval? Why should the State assert itself with respect to purchases of land within its borders?
1. When a State offers no comment with respect to a particular purchase, it is assumed by the court that the state consented
to the purchase. In other words, it is necessary for our elected representatives to be proactive and challenge the purchase
or they give up the state's sovereignty.
2. All lands purchased by the Federal government, for whatever reason, are considered to be "public lands."
[Ref. Federal Land Policy and Management Act, Sec. 103(e)] The U.S. Supreme Court has ruled in Kleppe v. New Mexico, 426 U.S.
529, (1976) that Congress exercises "complete" jurisdiction over public lands. Thus, every acre purchased by the
Federal government is an acre removed from sovereign state legislative jurisdiction.
3. With state jurisdiction stripped from federally purchased land, they no longer fall under state or local legislative
jurisdiction or regulation and we, the people, lose the ability to hold our locally elected representatives accountable. Also,
local economic conditions don't have any bearing on the development or production as dictated by a free market.
4. With state jurisdiction stripped from federally purchased property, the Federal government may exercise police power
on these lands as well as adjacent land, "notwithstanding such action may involve an entry upon the lands of a private
individual," Camfield v. U.S., 167 U.S. 518 (1897). A person selling his property to the Federal government exposes his
neighbors to the police power of the United States thus expanding the already vast reach of Federal police power within the
State. While this is a matter of sufficient concern in itself, it must also be noted that this police power is not susceptible
to local political control. Therefore, the people's right to republican governance, as is guaranteed under Article IV, section
4 of the U.S. Constitution, is further diminished by each Federal purchase of private or State owned land.
5. The state may not acquire Federal land other than by consent of Congress as set forth in Federal law. Congress will
not sell land unless it is determined that such sale is in the Federal government's best interest. The State should take equal
or greater responsibility when its sovereign jurisdiction, rights of self-determination and economic well being come under
attack by uncontested Federal government land purchases. Failure of the state to be thus concerned is to diminish the value
and dignity of statehood. If the state does not value its own rights of self-governance and self-determination, why should
the courts, or the Federal government? The answer to this question is that neither the courts nor the Federal government will,
as has been amply demonstrated.
6. A large percentage (40% to 80%)of western states and an increasing percentage of the other states (totaling just under
50% of the land mass of the United States) is owned or governed by the Federal government. This makes all mineral, energy
and renewable commodities on these and in some cases, neighboring lands available for economic purposes only in the interest
and priorities of the national government. The economic needs of the individual states, for economic stability, taxing authority,
management and control of public services such as police and education, are virtually irrelevant considerations within the
scope of this national agenda.
7. Congress intends that this condition will be forever: "The Congress declares that it is the policy of the United
States that the public lands be retained in Federal ownership unless...it is determined that disposal of a particular parcel
will serve the national interest," Federal Land Policy and Management Act, Sec. 102(a)(1). Every acre purchased by the
Federal government adds to this already vast impediment to the State being the sovereign master of its own destiny. This also
raises the question of equal footing. If the Federal Government owns or controls 60 to 80 percent of the land within the boundary
of a state, that state cannot be considered to be on equal footing with the original states.
The Federal government is consistent in its efforts to diminish the role of states. Again we quote the words of Thomas
Jefferson: "The natural process of things is for liberty to yield and government to gain ground." Of late, however,
the Supreme Court has, by a margin of 5 to 4, affirmed some state's rights in certain significant cases. For example; Printz
v. United States, June 27, 1997, affirmed that state officers are beyond Federal control, and Florida Prepaid Postsecondary
v. College Savings Bank, June 23, 1999, affirmed that Federal law could not abrogate state sovereign immunity from private
suit. Had these two cases not been undertaken, state officers, including legislators, would be increasingly subject to Federal
dictation thus further rendering states mere administrative units of the Federal government.
This persistent and pervasive threat to state sovereignty is not a matter to be taken lightly. The Founders divided power
and enumerated only certain powers to the Federal government, understanding it was the only way to maintain individual liberty.
To the extent that the Federal government consumes or otherwise diminishes that independent sovereignty of a state there is
an equal loss of individuals' liberty. This is reflected in another statement by Thomas Jefferson: "When all government
is centered in Washington, this government will become as evil and oppressive as the government from which we have just separated."
The Founders did not intend that the Federal government would ultimately consume the states; either with respect to their
governmental independence or with respect to their physical existence.
From the Records of the Federal Convention, James Madison, Sept. 5, 1787, we find another very telling explanation of
the reasoning for the enclave clause to be worded the way it is: Mr. Gerry contended that (the power of the Federal government
to purchase lands within states) 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...thus after
the word "purchased" the words "by the consent of the Legislature of the State'" was added to the Enclave
Clause.
Reading this explanation should leave no doubt that the founders feared uncontrolled Federal purchases of private land
within states. The right to territorial self-defense was intentional and without opposition and is the reason for the "consent"
provision of the Enclave Clause. The physical existence of states is not to depend upon trusting the intentions of the Federal
government.
An example of the federal government's intention of ever increasing control over individual states was, the Conservation
And Reinvestment Act, or CARA. This bill, if had been passed in its complete form, would have produce three billion dollars
per year for fifteen years and most of this money would be used for land acquisition. A major portion of this land acquisition
money will be for Federal purchases and for purchases by "conservation" groups who often "flip" their
purchase to the Federal government at a profit.
Although CARA in its complete form did not pass parts of the legislation did pass and this represents a vast increase
in the potential for Federal purchases of private land within states. The legislature of the State has an obligation to its
citizens to proactively participate in all Federal purchases. This is not to say that sales will not be permitted, but the
interest of the state and the people will be protected. It means only that the intended guardian of state sovereignty, the
state legislature, will determine whether any such sale will proceed.
State consent is not an infringement on private property rights. State consent is a defense of the interests of the State
and of the liberty of the people that springs from meaningful differentiation and division of power between the national and
state governments. In brief, state inaction has allowed the loss of state's jurisdiction and corresponding loss of individual
liberties. The legislature needs to affirm and assert the consent role of the legislature as an essential and overdue revitalization
of constitutional federalism. By inaction, a state's legislature is allowing their state authorities to be undermined by the
federal government! It is time for state legislatures to stand up and exercise their fiduciary responsibility to the people
they represent.
Researched and written by Bill Howell and J. L. (Jim) Tenney, Arizona State President of Frontiers of Freedom People of the
USA (FOF-PFUSA) Mr. Tenney can be reached at 4520 West Airport Rd., Willcox, Arizona 85643, Phone 520-384-2834, Fax 520-384-6396,
Email jt_assist@vtc.net.
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