Thursday, January 21, 2016

Constitutionality of (Western) Federal Lands

William Perry Pendley, writing at the National Review, sets out the constitutional case against federal land ownership in the West.

He writes that "[t]he Founding Fathers intended all lands owned by the federal government to be sold," and that "[p]lacement of the Property Clause in Article IV demonstrates the Founder's intention to not provide Congress with absolute power over federal lands; otherwise the provision would have been in Article I." He also points to the Enabling Acts under which states were admitted to the Union.

And he points to Chief Justice Roberts's "equal state sovereignty" in Shelby County:

Something about [the disparities in federal land ownership between the states] seems unfair. After all, in Shelby County v. Holder in 2013, Chief Justice Roberts, writing for the Court, declared: "Not only do States retain sovereignty under the Constitution, there is also a 'fundamental principle of equal state sovereignty' among the States. . . . Over a hundred years ago, this Court explained that our Nation 'was and is a union of States, equal in power, dignity and authority.'" Where--one wonders, considering the fate of Josephine County, which after all is but an arm of the state of Oregon--is the "dignity in what has befallen its residents?

Federalism, News | Permalink


For a supposedly minimalist judge, Roberts undertook quite an unprecedented expansion of Constitutional states’ rights with the whole “Equal Sovereignty” concept. He birthed it in dicta in Northwest Austin, then raised it to full growth in Shelby County, all without any real basis in the text, original interpretation, or prior jurisprudence of the Constitution. If the principle is taken to its logical conclusion, it will cripple the ability of the federal government to make the individualized policy decisions that, in a nation of 50 very different states with very different geography, demographics and needs, are absolutely essential to our survival and growth.

Posted by: Josh | Jan 22, 2016 5:29:03 AM

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