The Burden of Proof


Most of the early parts of the Constitution are fairly easy to understand, though the Courts have done their best to confuse the original content and context of those ideals that the Founders laid down.  Let’s think, for a second, what has been done with Article 1, Section 8 and what property the Federal Government may own, control and have authority over;  “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…”

With the understanding that the central government is one of enumerated powers, limited to what is expressly granted, how can you justify the Federal Government “owning” over 60% of a State’s land?  Utah is a case in point, but it isn’t the only one.  Check out this map and see what the Federal Government has claim over:

As you can see, much of the land of several western States is mostly under the control of the Federal Government.  That means in reality that “we the people” are limited in our use of it, and the respective States receive no tax revenue from this property, since it is not a commercial or residential property, nor under state or local control.

And the government certainly doesn’t need that much land for Forts, Docks (especially in Utah), etc., and, of course, if that were the use for those millions of acres, that actually would indirectly bring revenue, since towns always spring up around military and shoreline installations.  But it is, of course, not.  Almost all of that land is simply being., well, owned by the government.

One state, Utah, is attempting to bring this ownership issue to a head by exercising eminent domain over some of this central government land within the state borders, in essence trying to take it back from the Federal Government.  The use of eminent domain has always been a government, state, local, federal, seizing private property for the so-called common good.

This will be a first instance of one government attempting to take the land from another government.  The Federal Government holds a huge amount of valuable land in the western part of the country, and this novel approach could spark other states to follow.  It could be a good thing if Utah, and later down the road other states, win this battle.  And since they aren’t making any more land, as the population continues to grow, that population will need somewhere to live.

Now, I heard that you could actually fit the entire population of the country in just the State of Texas, with plenty of room for all.  So, the real issue here isn’t so much the space, but the revenue it can produce.  Oh yea, and there is that pesky little thing about sticking to the Constitution, in what we claim to be a government of laws.  The Constitution is law, you know – the ultimate law.  Funny how the ultimate law increasingly gets short shrift.

cap & chas


7 Responses to “The Burden of Proof”

  1. Gini Says:

    Excellent read, as always. lol
    Thank you Gini.


  2. Liz K Says:

    Thanks for an excellent explanation.
    The land grab by the “national” government is one more piece of the environmentalist agenda as well. I’m all for using our resources wisely and with as little pollution as possible, but I am for using those resources. As long as the national government owns so much of that resource-rich land, those resources will go untapped, and our country will remain hostage to oil producing countries.
    I knew cap could do a better job of explaining it than I could.

    Not better; just a different perspective and focus.


  3. Salvatore Says:

    Good Morning, Chas and Cap,
    Great Post guys.
    Thanks Sal.


  4. olinl Says:

    Nice piece, Chas and Cap. It seems that once a state was created, then the lands by virtue of the wording in the Constitution, should have been transferred to the states. How then did the government continue to give patents for homesteads? And what about National Forests?
    cap can better answer that more specifically. But there is, (no surprise here), a USSC ruling that; “as may, by Cession of particular States” in Article 1, Section 8, means that the State can, be cession, “give” land to the Federal Government.

    That the Federal Government can by means of coercion or threat gain the cession, seems not to matter. How you go from a Capitol & Military use to National Forrest is certain beyond my poor education in legal matters.

    Perhaps the word “National” is telling, in that a National Government tells States what to do and a Federal Government works with the States.


    • capmotion Says:

      To Olin’s query, sorry, Gang, been off and running, here and there. Remember that there are questions of federal jurisdiction and questions of federal real estate involved in this subject. It is understood that the federal government can own land, as a landlord, and that is a different question from the discussions of exclusive central governance authority, the latter of which are wrapped up in the DC, post offices, forts, docks sort of things of Art. I, sec. 8, cl. 17. Article IV, sec. 3, cl. 2, recognizes the authority of the central government to own property. Some of the national parks/national forests things are from ceded lands from the states, under Art, I, sec. 8; some are from ancient days when western conquests, and the Louisiana Purchase, and other things, gave real estate properety rights to the central government, which are Art. IV matters. Some federal lands that started out as national cemetaries and battlefields are owned/controlled by the federal government under “necessary and proper” applications of congressional war powers. There are a host of devices and doctrines supporting federal control/ownership/jurisdiction over real estate or areas.

      The Homestead Act stuff was pushed through by Lincoln in 1862, when the southern congress people had been evicted in the War of Northern Aggression, and it was part of his extra-legal imperial presidency which was loose on doctrine and broad on power, but it “gave” public lands that were Art. IV property from cessions, purchases, invasions.

      It is important to understand that Jefferson, theoretically a strict constructionist, did not think that the central government had the power to purchase real estate when he made the Louisiana Purchase, but he rationalized doing such, under the central government’s treaty power, for “national security,” giving the national security rationalization launchboard for extra-constitutionally expansive central government power seized upon and exploited by Lincoln, FDR, LBJ, and Obama!

      Jefferson also had no intention for the Government to control the land forever. The plan was for the Government to sell the land and the “profit” from the sales would be applied towards the war debt which he wanted paid off before he left office.

      He also pondered the purchase with great anxiety in regards to the Constitution and wanted the advice of Congress but time was working against him and he was fearful of the deal falling apart if he waited for the return of Congress.

      Some presidents agonize over violating the Constitution, some regale in it, but when push comes to shove, they will always rationalize that they have more power than the Framers really gave them; they never hew a line close to intent, because that is the nature of power exercisers, like the self-destructive nature of the fabled scorpion who stung his rescuer.

      For those interested in studying what the supreme court goes through in dealing with these matters, there is an interesting treatment of the tension between states rights, Article IV, and Article I, section 8, on property control questions, in Kleppe v. New Mexico (1976) 426 U.S. 529 – management of burros on “federal” land arguably invading state control interests.


  5. Gwen Says:

    Cap and Chas,

    I learn something new with almost every post. Great piece. I had no idea the Federal Govt owned that much land. Good luck to Utah and hopefully other states in their effort to get the land back from the Federal Govt.

    I like Frank’s idea of taking the Feds out to the wood shed. This administration could care less about the laws or you and I.

    Great post!
    Thanks Gwen. Someone said that the Federal Government owns/controls some 30% of the best land this Country has to offer. Seems a waste for such a dysfunctional organization to control so much good, usable property, just so it can sit there.



  6. Frank C Says:

    Great piece guys. I really wish the state of Utah luck in their attempt to stop the Federal Government from its land grab practices. The states would probably complain if the government did something with the land, like military installations, rather than let it be forever wild. Military bases mean jobs, taxes, growth.
    Why should the Feds worry about the “pesky Constitution.” It just gets in their way. Maybe they should be taken to the “Constitution Wood Shed” and spanked into recognition of the rights of the people.
    Agreed Frank.


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: