A synopsis by Chuck Horne

(Former Nevada State Legislator and Former Mayor of Mesquite, Nevada)

I have been asked to present a brief constitutionally oriented sketch of the legitimacy or illegitimacy of our Nations public lands policies. In order to do so we must first, firmly establish in our minds our only lawful foundation for this expose.

Marbury v. Madison, as delivered by Chief Justice John Marshall, is considered, even today, to be the “gold standard” of judicial proclamations regarding the separation of powers doctrine. Even though its declarations are Constitutionally self evident, they are almost universally ignored, just ask Congresswomen Nancy Pelosi as she and others of her “ilk” have so pontificated.

It is essential, therefore, to briefly revisit certain declarations of this “gold standard” to remind us of the lawful order of things here in America in order that as we see the light, we will be more capable of administering the heat, so to speak, giving us the courage to ignore or oppose the nonsensical musings of the politically unclean.

Consider then the following from this landmark case, “The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act. . . .”

If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. . . .”

“Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.

The 10th Amendment to the Constitution confirms the limitation of federal powers to just what the contract says it has: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Article IV, Section 3 provides the power to Congress to admit new States into the Union with restrictions that were clearly designed to protect the States reservations of powers. Clause 1 prohibited any existing State boundaries from being changed “without

the Consent” of its Legislature. Why that restriction if the Federal Government could own vast tracts of land within State boundaries?

“1: New States may be admitted by the Congress into this Union; but no new State 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.”

Clause 2 was designed to protect both the Federal and State claims to lands and facilities during the westward expansion.

“2: 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.”

How is it that such “Territory or other Property” can exist within State boundaries? Can ownership of it be retained by the Federal Government when the State is admitted to the Union? Can the “Enabling Acts” of certain States, wherein the voters traded their States rights for admission supersede the Constitution? The record of the Constitutional Convention answers with a resounding negative, but for this brief the following must suffice.

The only “Places” that the States ceded legitimate authority to the Congress to own and regulate was over, “all Places purchased by the Consent of the Legislature of the State”. And if that wasn’t enough protection against Federal abuse they additionally required, “Cession” by the State, which authorized use only for the following purposes; “for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;

Article I, Section 8, Clause 1: The Congress shall have Power . . . Clause 17: 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;

Supreme Court Justice Joseph Story, regarded as the “foremost jurist America has produced” proclaims regarding this clause, “But if there has been no cession by the State, of a particular place, although it has been constantly occupied and used, under purchase, or otherwise, by the United States, for a fort, arsenal, or other constitutional purpose, the State jurisdiction still remains complete and perfect.”

So where is the legitimate Constitutional authority for the Federal Government to own and regulate vast acreages of land within State’s boundaries, whose resources are then denied “to the States respectively, or to the people” by said government? It does not exist, regardless of the weaknesses of the States or the people to oppose these illegitimate usurpations. What was it that Ben Franklin said? Something like, “a Republic, if you can keep it”!