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“Originalism” or a “Living Constitution?”
Our thesis is based upon “constitutional originalism" meaning "first constitutional principles."
“The security of a people against the misconduct of their rulers, must lie in
the frequent recurrence to first principles, and the imposition of
adequate constitutional restrictions.” Fletcher v. Peck, 10 U.S. 87, 1810
Also: Patrick Henry, Benjamin Franklin, and the Utah Constitution
STATEHOOD: THE TERRITORIAL IMPERATIVE
Part I: Origin and Objects of the Federal Territorial System
Part II: Incorporation of the “Public Land Trust” and into the U.S. Constitution
Part III: Equal Footing Among the States
Part IV: State Enabling Act Compacts
Part V: Where did we go wrong?
“First, we must define our terms” - Voltaire
Within the context of this presentation:
Territory – federally held land that has yet to become a state; subject to federal maritime and territorial jurisdiction; outside of constitutional lawPublic Lands – federally held land within a state that is subject to disposition; formerly under constitutional law, now under federal maritime and territorial jurisdictionFederal Land – Federally held land within a state that is NOT subject to disposition; under federal maritime and territorial jurisdictionSovereign or Sovereignty – Subject to no other jurisdiction; the ability to rule in the final analysis
Part I: Origin and Objects of the Federal Territorial System
Part I: The Origin and Object of the Federal Territorial System
INTERSTATE CONFLICTS- Conflicting, overlapping land claims
- Hostile division among the States at the same time they were fighting the British
- Maryland was refusing to sign the Articles of Confederation since they were land-locked and could not compete with the larger States to the West that were making these land claims.
- This conflict between the States was an extreme embarrassment to the Continental Congress.
The Continental Congress of the United States: 1774 -1789:
- A convention of appointed ambassadors or delegates and not elected representatives.
- Had little to no authority to compel the States
- Attempted to resolve the divisive land dispute raging between the States.
Resolution of Congress of September 6, 1780:
On this date, a committee of the Continental Congress prepared a resolution which implored those States that were asserting claims to western "wastelands" to cede those claims to the Congress.
Resolution of September 6, 1780 continued:
The congressional committee stated that such cessions would "remove the embarrassments respecting the Western country."
These cessions, the committee continued, are "essential ... to our very existence as a free, sovereign, and independent people," and they are "necessary to the happy establishment of the Federal Union."
Resolution of September 6, 1780 continued:
The resolution of the committee requested that the land claiming States: "pass such laws, and give their delegates in Congress such powers as may effectually
remove the only obstacle to a final ratification of the articles of confederation; and that the
Legislature of Maryland be earnesly (sic) requested to authorize their delegates in Congress to subscribe
the said articles."
(Note that there was no indication in the resolution as to what the Congress intended to do with the land once it was
ceded. Only New York ceded its land claim at this time.)
Resolution of Congress of October 10, 1780:
On this date, Congress restated its resolution of September 6th.
With this revised resolution, Congress stated precisely what it would do with the lands if the States would comply with the cession request.
This resolution reads as follows:
(1) "Resolved, That the unappropriated lands that may be ceded or relinquished to the United States, by any particular states, pursuant to the recommendation of Congress of the 6 day of September last, shall be granted and disposed of for the common benefit of all the United States that shall be members of the federal union, (2) and be settled and formed into distinct republican states, (3) which shall become members of the federal union, and have the same rights of sovereignty, freedom and independence, as the other states: that each state which shall be so formed shall contain a suitable extent of territory, not less than one hundred nor more than one hundred and fifty miles square, or as near thereto as circumstances will admit: and that upon such cession being made by any State and approved and accepted by Congress, (4) the United States shall guaranty the remaining territory of the said States respectively. ..." (5) "That the said lands shall be granted and settled at such times and under such regulations as shall hereafter be agreed on by the United States in Congress assembled, or any nine or more of them.
The Resolution of the Continental Congress of October 10, 1780 is where the federal trust obligation with respect to federal territories and public lands began.
For this reason, we cannot understand the federal trust obligation with respect to these lands unless we fully understand this resolution.
So, lets consider the Resolution provision by provision:
(1) "Resolved, That the unappropriated lands that may be ceded or relinquished to the United States, by any particular states, pursuant to the recommendation of Congress of the 6 day of September last, shall be granted and disposed of for the common benefit of all the United States that shall be members of the federal union, (2) and be settled and formed into distinct republican states, (3) which shall become members of the federal union, and have the same rights of sovereignty, freedom and independence, as the other states: that each state which shall be so formed shall contain a suitable extent of territory, not less than one hundred nor more than one hundred and fifty miles square, or as near thereto as circumstances will admit: and that upon such cession being made by any State and approved and accepted by Congress, (4) the United States shall guaranty the remaining territory of the said States respectively. ..." (5) "That the said lands shall be granted and settled at such times and under such regulations as shall hereafter be agreed on by the United States in Congress assembled, or any nine or more of them ...."
(1) "Resolved, That the unappropriated lands that may be ceded or relinquished to the United States, by any particular states, pursuant to the recommendation of Congress of the 6 day of
September last, shall be granted and disposed of for the common benefit of all the United States
that shall be members of the federal union, (2) and be settled and formed into distinct republican states, (3) which shall
become members of the federal union, and have the same rights of sovereignty, freedom and independence, as the other states: that each state which shall be so
formed shall contain a suitable extent of territory, not less than one hundred nor more than one hundred and fifty miles square, or as near thereto as circumstances will
admit: and that upon such cession being made by any State and approved and accepted by Congress, (4) the United States shall guaranty the remaining territory of
the said States respectively. ..." (5) "That the said lands shall be granted and settled at such times and under such regulations as shall hereafter be agreed on by the United
States in Congress assembled, or any nine or more of them ...."
(1) "Resolved, That the unappropriated lands that may be ceded or relinquished to the United States, by any particular states, pursuant to the recommendation of Congress of the 6 day of
September last, shall be granted and disposed of for the common benefit of all the United States that shall be members of the federal union, (2) and be settled and formed into distinct
republican states, (3) which shall become members of the federal union, and have the same rights of
sovereignty, freedom and independence, as the other states: that each state which shall be so formed shall
contain a suitable extent of territory, not less than one hundred nor more than one hundred and fifty miles
square, or as near thereto as circumstances will admit: and that upon such cession being made by any State and approved and accepted by
Congress, (4) the United States shall guaranty the remaining territory of the said States respectively. ..." (5) "That the said lands shall be granted and settled at such times and under
such regulations as shall hereafter be agreed on by the United States in Congress assembled, or any nine or more of them ...."
(1) "Resolved, That the unappropriated lands that may be ceded or relinquished to the United States, by any particular states, pursuant to the recommendation of Congress of the 6 day of September last, shall be granted and disposed of for the common benefit of all the United States that shall be members of the federal union, (2) and be settled and formed into distinct republican states, (3) which shall become members of the federal union, and have the same rights of sovereignty, freedom and independence, as the other states: that each state which shall be so formed shall contain a suitable extent of territory, not less than one hundred nor more than one hundred and fifty miles square, or as near thereto as circumstances will admit:
and that upon such cession being made by any State and approved and accepted by Congress, (4) the United States shall guaranty the remaining territory of the said States respectively. ..." (5) "That the said lands shall be granted and settled at such times and under such regulations as shall hereafter be agreed on by the United States in Congress assembled, or any nine or more of them ...."
(1) "Resolved, That the unappropriated lands that may be ceded or relinquished to the United States, by any particular states, pursuant to the recommendation of Congress of the 6 day of September last, shall be granted and disposed of for the common benefit of all the United States that shall be members of the federal union, (2) and be settled and formed into distinct republican states, (3) which shall become members of the federal union, and have the same rights of sovereignty, freedom and independence, as the other states: that each state which shall be so formed shall contain a suitable extent of territory, not less than one hundred nor more than one hundred and fifty miles square, or as near thereto as circumstances will admit: and that upon such cession being made by any State and approved and accepted by Congress, (4) the United States shall guaranty the remaining territory of the said States respectively. ..."
(5) "That the said lands shall be granted and settled at such times and under such regulations as shall hereafter be agreed on by the United States in Congress assembled, or any nine or more of them ...."
With its promise to divest itself of the ceded lands and to establish new and equal State therein, and to not hold the land in federal ownership, the land claiming states did, over time, yield their western land claims to their Union.
New York (1780), Virginia (1784), Massachusetts (1785), Connecticut (1786) and South Carolina (1787).
North Carolina, and Georgia ceded their western "waste lands" in 1789 and 1802 respectively after ratification of the U.S. Constitution in 1788.
In 1833, President Andrew Jackson referred to the land cession compacts which arose out of this resolution of Congress in these words:
"These solemn compacts, invited by Congress in a resolution declaring the purposes to which the proceeds of these lands should be applied, originating before the constitution, and forming the basis on which it was made, bound the United
States to a particular course of policy in relation to them by ties as strong as can be invented to secure the faith of nations."
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The Public Land TrustIn 1976, the Supreme Court referred to “the public lands thus entrusted to Congress.” Trusts are usually matters of law written or otherwise documented in detail between trustors and trustees. The public land trust must be documented in history somewhere.
Where is it written?
What is its object or purpose?
We submit that the federal trust obligation respecting territorial and public lands originated
with, and is defined by, the Resolution of Congress of October 10, 1780.
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Part I - Summary:The resolution of Congress of October 1780 was the origin of the federal trust respecting public lands. This trust intends that certain specific benefits will accrue to new states established out of these lands:
1. New states will be “distinct” and “republican.”2. New states will encompass a “suitable extent of territory.”3. New states will possess “the same rights of sovereignty and independence as the original states.”4. The remaining territory of the ceding states will be “guaranteed.”5. Ceded lands will be “granted and settled under the regulations of Congress.”6. New states established within the federal territories will be admitted as “members of the federal union.”
Part II: Incorporation of the “Public Land Trust” and into the U.S. Constitution
The Constitutional Convention was held in Philadelphia during the summer of 1787. Fifty five men attended the convention either occasionally or through out its duration. Of these fifty five, nine (9) were also members of the Continental Congress in 1780 when the Resolution of October, 1780 was adopted establishing the trust respecting
territorial and public lands.
Oliver Ellsworth - ConnecticutRoger Sherman - ConnecticutWilliam Few - GeorgiaDaniel Jenifer of St. Thomas - MarylandElbridge Gerry - MassachusettsWilliam C. Houston - New JerseyGeorge Clymer - PennsylvaniaJared Ingersoll - PennsylvaniaJames Madison - Virginia Of these nine only two, Gerry and Houston, did not sign the final draft of the Constitution.
The draft Constitution of 1787 was consistent with the terms of the trust established just seven years earlier under the Resolution of
October 1780.
“Men do not use words to defeat their purposes.” United States v. Classic, 313 U.S. 299,
1941
The US Supreme Court, in 1828, said as much.
In 1828, Chief Justice John Marshall of the U.S. Supreme Court (1801 – 1835) said this about the Constitution, the Constitutional Convention and the first federal territories which were ceded by the states:
"At the time the Constitution was formed, the limits of the territory over which it was to operate were generally defined and recognised (sic). These limits consisted in part, of organized states, and in part of territories, the absolute property and dependencies of the United States. These states, this territory, and future states to be admitted into the Union, are the sole objects of the Constitution; there is no express provision whatever made in the Constitution for the acquisition or government of territories beyond those Limits." American Ins. Co. v. 356 Bales of Cotton, 26 U.S. 511, 1828."
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Resolution of 1780 Constitution of 1787
• Article IV, sec. 3, cl. 2, the Property Clause:
“The Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States;”
• 1. “Resolved, That the unappropriated lands that may be ceded or relinquished to the United States, by any particular states, pursuant to the recommendation of Congress of the 6 day of September last, shall be granted and disposed of for the common benefit of all the United States ...”
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Resolution of 1780 Constitution of 1787
• Article IV, sec. 4, the Guarantee Clause:
“The United States shall guarantee to every state in this union a Republican form of government, ....”
• 2. “... and be settled and formed into distinct republican states ....”
• (Political accountability on the part of those who would wield the power.)
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Resolution of 1780 Constitution of 1787
• Article IV, sec. 3, cl. 1, the Admissions Clause:
• “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” (Also the Enclave and Claims Clauses)
• 3. “ ... distinct republican States, which shall become members of the federal union ....”
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Resolution of 1780 Constitution of 1787
• Article I, sec. 8 cl. 17, the Enclave Clause:
“The Congress shall have power to ... exercise (exclusive legislation in all cases whatsoever) over 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.” (Also, Claims and Admissions clauses)
• 4. “... the United States shall guaranty the remaining territory of the said States respectively.”
• “All objections and scruples (to the acquisition of land by the U.S.) are here also obviated by requiring the concurrence of the States concerned, in every such establishment.” Madison, Federalist #43.
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Resolution of 1780 Constitution of 1787
• Article IV, sec. 3, cl. 2, Claims Clause:
“and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.”
• 4 cont’d. “ ... the United States shall guaranty the remaining territory of the said States respectively.”
• “Lordship of the soil remains in full perfection with every state” and this constitutes “one of the most valuable and powerful appendages of sovereignty,” Tench Coxe, Publisher, Pennsylvania, circa 1788
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Resolution of 1780 Constitution of 1787
• Article IV, sec. 3, cl. 2, the Property Clause:
“The Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States;”
• 5. “That the said lands shall be granted and settled at such times and under such regulations as shall hereafter be agreed on by the United States in Congress assembled.”
Resolution of Oct. 1780• The Continental
Congress was a convention of appointed delegates representing their respective states. The Resolution of Oct. 1780 was, therefore,
a compact or “engagement” between the states and not a legislative act.
Constitution of 1787• Article VI, cl. 1, the
Debts and Engagements Clause:
• “All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.”
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We have already shown that by terms of the Resolution of Congress of Oct. 10, 1780, certain benefits were to accrue to the new states formed out of the new federal territories:
1. New states would be “distinct” and “republican.”2. New state would encompass a “suitable extent of territory.”3. New state would possess “the same rights of sovereignty and independence as the original states.”4. New states established within the federal territories would be admitted as “members of the federal union.”5. The remaining territory of the ceding states would be “guaranteed.” 6. The ceded lands would be “granted and settled under the regulations of Congress.”
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If the elements of the public land trust established under the Resolution of 1780 were incorporated into the Constitution of 1787, is it possible that the benefits accruing to the States out of that can belong only to the original states and to those certain new states which were established out of the first ceded territories?
39
The federal government under the Constitution “... is the government of all; its powers are delegated by all; it represents all, and acts for all,”
McCulloch v. Maryland, 17 U.S. 316, 1819
If the draft Constitution incorporated the trust elements of the Resolution of 1780, and if under this trust, Congress obligated itself to dispose of the territorial lands ceded to it, does it not follow that the word “dispose” in the Property Clause of Article IV, refers to that same obligation?
And if the word “dispose” in the Property Clause referred to an obligation in 1787, it must refer to an obligation today:
“The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when it was adopted, it means now.” South Carolina v. United States, 199 U.S. 437, 1905.
40
No law can be applied differentially to different people at the same time and this principle applies as well to the “Supreme Law of the Land”:
“It would seem repugnant to the first notions of justice, that in respect to the same instrument of government, different powers, and duties, and obligations should arise, and different rules should prevail, at the same time among the governed, ...” Justice Story, Commentaries on the Constitution, 1833, Book III, Ch. IV, 357
41
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As a matter of “constitutional uniformity” Congress may make no distinction between the first federal territories and territories latter acquired: “Upon the acquisition of a territory by the United States, whether by cession from one of the states, or by treaty with a foreign country, or by discovery and settlement, the same title and dominion passed to the United States, for the benefit of the whole people, and in trust for the several states to be ultimately created out of the territory.” Shively v. Bowlby, 152 U.S. 1, 1894
Part II – Summary:1. The Constitutional Convention was attended by nine delegates who had been members of the Continental Congress in 1780 when the public land trust was adopted.
2. The public land trust established in 1780 provided a list of at least six (6) benefits that were to accrue to new states established within the new federal territories and also to the existing states.
3. The draft Constitution contained six clauses which reflected and preserved the elements of the public land trust including the benefits that were to accrue to the states.
3. As a consequence of the principle of constitutional uniformity the terms of the Constitution must apply in the same matter to all and cannot be differentially applied.
5. Congress cannot distinguish its duties with respect to the territories on the basis of the manner by which each may have been acquired by the United States.
6. CONCLUSION: The western so-called “public land states” are entitled, under the Constitution, to the same benefits arising under the Resolution of 1780 that were received by the fist new states that were established out of lands ceded by certain of the original states. 43
Part III: Equal Footing Among the States
“Equal Footing” has been defined by the US Supreme Court:
“The requirement of equal footing was designed not to wipe out those diversities (diversity incident to area, geology, latitude, economy, etc.) but to create parity as respects political standing and sovereignty.”
... “The ‘equal footing’ clause (of the US Constitution) has long been held to refer to political rights and to sovereignty. See Stearns v. Minnesota, 179 U.S. 223, 245.” United States v. Texas, 339 U.S. 707, 1950.
Note that “political standing” and “political rights” are used interchangeably.
The original states retained territorial sovereignty and jurisdiction over the entirety of their territory under both the Articles of Confederation and the Constitution of 1787:
“Each (former colony) declared itself sovereign and independent, according to the limits of its territory.” “[T]he soil and sovereignty within their acknowledged limits were as much theirs at the declaration of independence as at this hour.” Harcourt v. Gaillard, 25 U.S. 523, 1827.
“Lordship of the soil remains in full perfection with every state” and this constitutes “one of the most valuable and powerful appendages of sovereignty.”
Tench Coxe, Publisher, during the period of the Pennsylvania Constitutional Convention, circa 1788.
Every new State is entitled under the Constitution to the same territorial sovereignty as the original States:
“Alabama is therefore entitled to the sovereignty and jurisdiction over all the territory within her limits, subject to the common law, to the same extent that Georgia possessed it before she ceded it to the United States. To maintain any other doctrine is to deny that Alabama has been admitted into the Union on an equal footing with the original states, the Constitution, laws, and compact to the contrary notwithstanding.” Coyle v. Smith, 221 U.S. 559, 1911, citing Pollard v. Hagan, 1845
“On (the admission of Illinois into the Union) she at once became entitled to and possessed of all the rights of dominion and sovereignty which belonged to the original states. She was admitted, and could be admitted, only on the same footing with them. The language of the act of admission is, ‘on an equal footing with the original states in all respects whatever.’ Equality of constitutional right and power is the condition of all the states of the Union, old and new.” Escanaba & Lake Michigan Transp. Co. v. City of Chicago, 107 U.S. 678, 1883.
“The court (Pollard v. Hagan, 1845) declared that to refuse to concede to Alabama sovereignty and jurisdiction over all the territory within her limits would be to 'deny that Alabama has been admitted into the Union on an equal footing with the original states.' The same principles were applied in Louisiana v. First Municipality, 3 How. 589.” Ward v. Racehorse, 163 U.S. 504, 1896
If new states are to possess sovereignty equal to that of the original states, then they must possess sovereignty over the entirety of that “suitable extent of land” which was defined as “the state” by terms of their respective state enabling act compacts.
“What then is the extent of jurisdiction which a state possesses? We answer, without hesitation, the jurisdiction of a state is co-extensive with its territory; co-extensive with its legislative power,”
U.S. v. Bevans, 16 U.S. 336, 1818
If all of the land within a state is to be subject to the legislative power of the state, except as that power may be temporarily limited by terms of the state’s enabling act compact then what is the role of the United States and of Congress with respect to the public lands lying within it?
The US Supreme Court has acknowledged that opinions on this question have varied over the years:
“I am not unmindful that there has been some contrariety of decision on the subject of the meaning of the clause empowering Congress to dispose of the territories and other property of the United States, some adjudged cases treating that article (the Property Clause) as referring to property as such, and others deriving from it the general grant of power to govern territories.” Downes v. Bidwell, 182 U.S. 244, 1901.
Those cases which treat the Property Clause as referring to property “as such” are consistent with the foregoing discussion respecting the federal land trust and the Equal Footing Doctrine. Some of those cases are presented below.
Those cases which refer to the Property Clause as a “general grant of power to govern territories” are not consistent with the terms of the federal land trust. Some of these cases will be considered in Part VI.
A sampling of those cases which treat the Property Clause as pertaining only to property and the rights of a proprietor follows:
“And the vacant soil is to be disposed of by that organ of the government which has the constitutional power to dispose of the national domain.” Lessee of Johnson et al. v. McIntosh, 21 U.S. 543, 1823.
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There was a “... great trust imposed on the (United States) to dispose of the public domain for the common benefit.”
“Whenever the United States shall have fully executed these trusts, the municipal sovereignty of the new states will be complete, throughout their respective borders, and they, and the original states, will be upon an equal footing, in all respects whatever.” Pollard v. Hagan, 44 U.S. 212, 1845
Federal land laws under the Property Clause “are not of a legislative character in the highest sense of the term, but savor somewhat of mere rules prescribed by an owner of property for its disposal.” Butte City Water Co. v. Baker, 196 U.S. 119, 1905, U.S. v. Midwest Oil, 236 U.S. 459, 1915
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“(S)o far as it relates to the public lands within a new State, (federal power) amounts to nothing more nor less than rules and regulations respecting the sales and disposition of the public lands.” Coyle v. Smith, 221 U.S. 559, 1911
(Note that this limited role of Congress does not include “governance” but merely the role of a proprietor disposing of its property.)
Part III – Summary:1. Equal Footing among the states is a constitutional mandate2. Equal footing is defined as equality as to “political rights and sovereignty.”3. Equality of territorial sovereignty is an essential component of the Equal Footing Doctrine.4. Denial of territorial sovereignty equivalent to that of the original states is denial of constitutional right and a constitutional violation.5. So long as public lands remain in federal ownership, complete and independent state sovereignty equivalent to that of the original states is denied.6. CONCLUSION: The Equal Footing Doctrine requires that the federal title in public lands be extinguished and the lands disposed of. 61
Part IV: State Enabling Act Compacts
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State enabling act compacts are binding agreements between the people residing within a defined federal territory and the United States.
State enabling act compacts set forth the terms by which the people of the federal territory may erect a state for themselves and they define that “suitable extent of territory” over which they may preside and govern once they have been admitted into the federal union as a new state upon an equal footing with the original states.
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As constitutional laws, state enabling act compacts must be consistent with, and cannot be in conflict with, the six clauses of the Constitution that reflect and codify the terms of the federal trust respecting public lands which was set down in the Resolution of Congress of October 1780:
Property Clause Guarantee ClauseAdmissions Clause Enclave ClauseClaims Clause Debts and Engagements Clause
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State enabling act compacts cannot be employed by Congress to prejudice the rights of any state or to degrade their sovereign dignity beneath that of the original states:
“So far as this court has found occasion to advert to the effect of enabling acts as affirmative legislation affecting the power of new states after admission, there is to be found no sanction for the contention that any state may be deprived of any of the power constitutionally possessed by other states, as states, by reason of the terms in which the acts admitting them to the Union have been framed.” Coyle v. Smith, 221 U.S. 559, 1911. 65
There are two temporary exceptions to the preceeding statement from Coyle v. Smith.
State enabling act compacts, beginning with the Northwest Ordinance of 1787 (which was the first enabling act compact), deny each new state the authority to tax the public lands and they deny application of the state’s laws governing the conveyance of descent of land title.
66
Conversely, state enabling act compacts recognize the obligation of Congress to extinguish the federal title in the public lands and to dispose of them.
By this disposal, the two temporary restraints upon the exercise of state territorial sovereignty listed above are rendered temporary.
The federal obligation to dispose of the public land is recognized in the Utah Enabling Act compact with the following language: 67
Utah Enabling Act of 1894 at sec. 3, second:
“(T)hat until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States.”
Historically, concern was expressed that Congress would delay or even deny its obligation to dispose of the public lands.
The US Supreme Court offered its opinion that Congress would not so mistreat any state:
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“(I)f Congress should determine that the great body of public lands within the state of Minnesota should be reserved from sale for an indefinite period it might do so, and thus the lands be exempted from taxation; and yet it cannot be imputed to Congress that it would discriminate against the state of Minnesota, or pass any legislation detrimental to its interests. It had the power to withdraw all the public lands in Minnesota from private entry or public grant, and, exercising that power, it might prevent the state of Minnesota from taxing a large area of its lands, but no such possibility of wrong conduct on the part of Congress can enter into the consideration of this question. It is to be expected that it will deal with Minnesota as with other states, and in such a way as to subserve the best interests of the people of that state,” Stearns v. Minnesota, 179 U.S. 223, 1900. 70
Extended retention of the public lands in federal ownership was seen as “wrong conduct” by
others as well:
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A) In 1832, Senator Clay described extended retention of the public lands in federal ownership as an “exercise of arbitrary and intolerable power.” Gales and Seaton’s Register, p. 1095, June 20, 1832
B) In 1833, President Andrew Jackson wrote that employment of the constitutional property clause for any purpose other than the fulfillment of the trust established under the “Trust Compacts” would be “an assumption of undelegated power.” Veto of the Land Bill, 1833
C) In 1840, the U.S. Attorney General referred to extended retention as a “(wanton) abuse (of) a delegated trust.” Mr. Gilpin, Attorney General for the United States, United States v. Gratiot, 39 US 526, 1840
However, “It is a besetting vice of democracies to substitute public opinion for law. This is the usual form in which masses of men exhibit their tyranny.” James Fenimore Cooper, writer, 1789-1851
Part IV – Summary:1. Defined extents of federal territory were prepared for admission into the union of states under terms of state enabling act compacts.
2. State enabling act compacts are necessarily consistent with the requirements of the Constitution and, therefore, also necessarily consistent with the terms of the federal trust obligations with respect to public lands.
3. As instruments that are necessarily consistent with the land trust established under the Resolution of 1780, state enabling act compacts recognize the obligation placed upon Congress to extinguish the federal title and to dispose of the public domain.
4. Failure by Congress to comply with the terms of state enabling act compacts results in a breach of trust and denial of a state’s admission into the union upon an equal footing with the original states which is a constitutional violation.
5. CONCLUSION: Permanent retention of the public lands in federal ownership is a breach of trust and a constitutional violation.
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Part V: Where did we go wrong?
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Perhaps the greatest error was not an error at all but, rather, a deliberate act of deception.
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Gouverneur Morris was an active member of the Constitutional Convention of 1787. He was wealthy and well educated. As an “elitist”
he disdained the people of the western territories: “I dread the cold and sour temper of the back counties.” He also held contempt for the
independent sovereignty that the people of the States insisted on retaining to themselves: “"State attachments, and State importance
have been the bane of this country." 1 Farrand 34, 258
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As a result of his elitism, Morris preferred that new territories which might be acquired by the United States be maintained as provinces or colonies and not allowed to ascend to political and sovereign equality with the original states:
“I always thought that when we would acquire Canada and Louisiana it would be proper to govern them as provinces and allow them no voice in our councils. In wording the third section of the fourth article (the Property Clause) I went as far as circumstances would permit to establish the exclusion. Candor obliges me to add my belief that had it been more pointedly expressed, a strong opposition would have been made.” Gouverneur Morris to Henry W. Livingston, Morrisania, December 4th, 1803
As a dominant participant in the deliberations of the Constitutional Convention, Morris had great influence on its outcome. Most particularly, Morris was able to add his particular slant to the constitutional text itself since he was also the one who actually penned the original document:
“The finish given to the style and arrangement of the Constitution fairly belongs to the pen of Mr. Morris.” Madison to Mr. Sparks, Montpellier, April 8, 1831, Elliot's Debates. vol.1, 507;
“That instrument (the Constitution) was written by the fingers which write this letter.” Gouverneur Morris to Timothy Pickering, in Congress. Morrisania, December 22, 1814, Elliot's Debates. vol. 1, 507.
In a letter to his friend, Henry Livingston, Morris confessed to having crafted wording in the Property Clause which could be construed as allowing the possession of Canada and Louisiana (the L. Purchase) as “provinces” with “no voice in our councils” even though no such authority was allowed under the federal trust respecting federl territorial and public lands.
To understand what Morris did, we must return to the Resolution of 1780 as well as to the Land Ordinance of 1784 and the Northwest Ordinance of July, 1787, the very summer of the Constitutional Convention.
Notice in each of the following historic documents that the “regulations of Congress” are joined to the act of disposition by a preposition:
Resolution of Congress of 1780: “That the said lands shall be granted
and settled at such times and under such regulations as shall hereafter be agreed on by the United States in Congress assembled, or any nine or more of them ....” (emphasis added)
Land Ordinance of 1784: “Third. That they (the States) in no case shall interfere with the primary disposal of the soil by the United states in Congress assembled, nor with the ordinances and regulations which
Congress may find necessary, for securing the title in such soil to the bona fide purchasers.” (emphasis added)
Northwest Ordinance of 1787: “The legislatures of those districts or new States, shall never interfere with the primary disposal of the soil by the United States in Congress assembled, nor with any regulations Congress
may find necessary for securing the title in such soil to the bona fide purchasers.”
Prepositional phrases as in “under such regulations,” or “for securing the title in such soil” are written to modify a verb, noun or, adjective. In each of the instances in the slide above, the modified verb concerns “disposal” of the public domain.
It is clear that the Continental Congress which drafted the three historic documents above intended that its “rules and regulations” respecting the territorial and public lands would be for a singular purpose and that purpose is their disposal.
Now consider the manner in which Morris crafted the Property Clause of Article IV:
“Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.”
Where a preposition once linked the “regulations” of congress to the act of disposal, we now have a conjunction. This single alteration offers the impression that two distinct powers are delegated to the Congress under this clause – the “power to dispose” and the power to “make all needful rules and regulations.”
What are the modern-day consequences of this subterfuge?
Two destructive and patently unconstitutional consequences have derived from Morris’ subterfuge:
1. Despite the historic understanding that extended retention of the public domain in federal ownership would be “wanton abuse of a delegated trust” and etc., Congress, in 1976, determined that it would be thereafter federal policy to “retain the public lands in federal ownership.” (FLPMA)
2. The delegated power to make “all needful rules and regulations” is no longer limited to those regulations needed to carry out disposition. This power is now construed as a “complete” legislative power “without limitation” equivalent to that of both the national government under the Constitution and also that of the states.
The subterfuge of Gouveneur Morris in crafting the Property Clause is at the root of the greatest damage done to the western states but it is not the only source of that damage. The following is a list of other cases that have contributed to the destruction of state territorial sovereignty and, ultimately, to the destruction constitutional federalism as conceived by the Framers:
U.S. v. Gratiot, 39 U.S. 526, 1840, 1840: This case said that “territories” and “land” were equivalent terms even though pre-statehood territories are vastly different jurisdictionally from public land within the admitted states. This error allowed for the entry of federal territorial governance into the states on these public lands.
Kohl v. United States, 91 U.S. 367, 1875: This case established the “doctrine” that Congress was not actually required to obtain state legislative consent before purchasing land with a state as required under Art. I, sec. 8, cl. 17, the Enclave Clause. This “doctrine” destroyed the notion of inviolable state territorial sovereignty.
Ft. Leavenworth R. Co. v. Lowe, 114 U.S. 525, 1885: This case referred to the Kohl case as a ““a doctrine authoritatively declared” despite the plain words of the Enclave Clause and other absolute constitutional protections for state territorial sovereignty. This case went on to establish that once land has been acquired by Congress under Kohl it may exercise governmental jurisdiction over the place to the extent necessary to meet the purposes for which the land was purchased.
Collins v. Yosemite Park, 304 U.S. 518, 1938: This case established that the “purposes of the government” for which it may acquire and hold land are not limited to those purposes listed in under the Enclave Clause (forts, dockyards & etc.).
Kleppe v. New Mexico, 426 U.S. 529, 1976: This case made several robust statements regarding the alleged authority of the United States and Congress over the public lands within the several states:
“Even over public land within the states, the general government has a power over its own property analogous to the police power of the several states, and the extent to which it may go in the exercise of such power is measured by the exigencies of the particular case; Congress exercises the powers both of a proprietor and of a legislature over the public domain.”
“Although absent consent or cession a state retains jurisdiction over federal lands within its territory, Congress retains the power to enact legislation respecting those lands pursuant to the property clause of Article IV, sec. 3, clause 2, of the federal Constitution, which confers upon Congress power to dispose of and make all needful rules and regulations respecting property belonging to the United States; the federal legislation under the property clause necessarily overrides conflicting state laws under the supremacy clause in Article VI, clause 2, of the federal Constitution.”
“Kleppe continued:
“Although the property clause in Article IV, sec. 3, clause 2, of the federal Constitution, conferring upon Congress the power to dispose of and make all needful rules and regulations respecting property belonging to the United States, does not authorize an exercise of a general control over public policy in a state, it does permit an exercise of the complete power which Congress has over particular public property entrusted to it.”
“The (Property) Clause must be given an expansive reading, for ‘[t]he power over the public lands thus entrusted to Congress is without limitations.’”
Finally, in answer to the question, “where did we go wrong?” it is noted that not once did the states rise up and demand correction to the judicial and congressional errors and usurpations that are cited here. And yet it is the states that were intended by the Framers to “be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government.” Alexander Hamilton, Federalist No. 26
