Senator Orrin Hatch
United States Senate
131 Russell Senate Office Building
Washington, DC 20510-4402
September 5, 2001 updated 2/15/2011
Ref: Taking property under the Antiquities and the National Monument Fairness Acts
Sir;
Some time ago (1997) I addressed a concern about the government take over of Utah state land (Grand Staircase-Escalante National Monument). You indicated that you were working on a bill (National Monument Fairness Act of 1997) to curb federal land grabbing. Did this Act pass?
You indicated in your letter that then President Clinton’s authority came from the Antiquities Act of 1906 passed by Congress. This raises the question: 1] Can an Act of Congress violate the constitutional limitations imposed upon the federal government and extend the powers of government over the sovereign States? My answer to this would be NO! For the following reasons: After the revolution, the 13 Colonies were free and independent nations with all of the rights and sovereignty of such. The Constitution is silent as to authority for the federal government entering the sovereign territory of the individual States and taking possession of land.
In Eric C. Rusnak’s article, ”The Straw that Broke the Camel’s Back?”, he starts out quoting Article IV, section 3, clause 2 of the Constitution thusly; ”The United States Constitution grants to Congress the “[p]ower to dispose of and make all needful Rules and Regulations respecting the . . . Property belonging to the United States.” If you read the clause as quoted by Mr. Rusnak, you understand the rest of the article. However, if you read the clause in total understanding the phrases “belonging to the United States . . .” and “. . . nothing. . . shall be so construed as to Prejudice any Claims . . . of any particular State.” You get a different perspective on the power of government.
“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.” U.S.CONST. art. IV, § 3, cl. 2.
Some interesting comments regarding this clause by Justice Story; ”§ 1318. As the general government possesses the right to acquire territory, either by conquest, or by treaty, it would seem to follow, as an inevitable consequence, that it possesses the power to govern, what it has so acquired. The territory does not, when so acquired, become entitled to self-government, and it is not subject to the jurisdiction of any state. It must, consequently, be under the dominion and jurisdiction of the Union, or it would be without any government at all.” Joseph Story, Commentaries on the Constitution, 3:§§ 1317–22
From the commentaries of James Kent; ”It would seem, from these various congressional regulations of the territories belonging to the United States, that congress have supreme power in the government of them, depending on the exercise of their sound discretion. Neither the District of Columbia, nor a territory, is a state, within the meaning of the constitution, or entitled to claim the privileges secured to the members of the union. . . .” Commentaries 1;360 — 61 (1826)
The States and the land incorporated within their respective boundaries do not belong to the Federal government. Territories, yes, but not the States!! As stated by Utah State Attorney General, Mark Shurtleff, “we are not colonies.”
Remember the the three (3) different meanings of the term “United States”; 1. A member of nations; 2. The union of States; 3. The federal government. Now the only property that the Federal government “owns” is that land ceded to it along with it an “exclusive jurisdiction”, by the individual states and nothing else. The territories, yes until statehood is granted and reservations are retained in the enabling act admitting that State. So the conclusions Mr. Rusnak and many in Congress, including you Senator, are making is misguided by a false assumption. In my opinion both Acts of Congress are void.
“This amendment (10th), in addressing the powers ‘not delegated,’ is best understood as an instruction on how to read the Constitution’s silences with respect to national governmental authority: on that subject, we are told, ‘silence’ means ‘prohibition.’” (Construing the Sounds of Congressional and Constitutional Silence) The only provisions given are spelled out in Article I, Section 8, cl. 17; “… to exercise like Authority over all Places purchased by the Consent of the Legislature of the State;” And then the land acquired “by the consent of the … State” is to be for “… the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.” Nothing in clause 17 about national parks, etc. It is quite clear that if the Antiquities Act of 1906 authorizes the President to encroach upon the sovereign territory of the States, it is not found in the Constitution and would therefore be an “unconstitutional” Act.
“This government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the powers granted to it,…” (M’Cullock vs. Maryland, 4 Wheaton 316, 405 (1819))
The Constitution is a delegation of power from the people to the federal government. One state cannot confer a sovereign power to the federal government over another state. (“The people of a single state cannot confer a sovereignty which will extend over [the rest of the people] them.” [M’Cullock, supra., 429])
There are no ‘implied powers’ that would come from the words of the constitution supporting the ‘taking’ of state property, without the consent of the state. What great nation purpose is served by this thievery? National defense? General welfare? Of what interest or authority do the people of the other 49 states have within the sovereign state of Utah? Is it right that the people in general (United States) can dictate how the state of Utah administers its lands? If it is as you say in the Antiquities Act, I see no authority for Congress to pass this Act.
“… For why declare that things shall not be done which there is no power to do?” [”The Federalist,” Hamilton, No. 84]
“We admit, as all must admit, that the powers of government are limited, and that its limits are not to be transcended.” (M’Cullock, supra., 421)
That the preservation of natural resources, parks and such is a noble cause, but that is not the issue. The issue is that ever since the 1930’s, the federal government has made inroads into the lives of individuals and the states. Areas which until that time government kept away. It makes one wonder if the crisis (depression/war) was not created to divert the attention of the people and the government insert these socialist programs. It has been said that “taxes are not raised to support wars, but wars are started to support taxes.”
I hope that your efforts would be to downsize the federal government and give back our liberties. Also, to help the States regain their dignity. I like the comments of former President Franklin Pierce in a veto message sent to the Senate May 3, 1854 as recorded in Steward Machine Co. v. Davis (301 U.S. 548,600-609), the dissenting opinion of Justice McReynolds.
“…If the time shall ever arrive when, for an object appealing, however strongly, to our sympathies, the dignity of the States shall bow to the dictation of Congress by conforming their legislation thereto, when the power and majesty and honor of those who created shall become subordinate to the thing or their creation, I but feebly utter that we shall see ‘the beginning of the end.” (p. 606)
Don’t you think we (states) have been in a subservient position in relation to the federal government over the last few decades? I think it is time to stand up and declare our sovereignty as a State.
Notwithstanding the Antiquities Act of 1906, when someone ‘takes’ from someone else without that person’s consent; isn’t that theft?
It might be contended that the federal government is exercising its ‘sovereign’ authority under the doctrine of ‘eminent domain’. My research has lead me to the conclusion that the doctrine of eminent domain is misapplied by the government (state and federal) because.
Eminent domain is a “Feudal” concept (See Black’s Law Dictionary, 6th ed., “Tenure”) emanating from socialist ideals where the King is the “fountain of Law.” In these countries indeed the government is the “sovereign” because the King is the government and;
“All property is held by tenure from the state, and all contracts, are made subject to the right of eminent domain.” (Encyp. of Supreme Court Decisions, p. 751)
Prior to the magical era (1930’s) the individual held their property with allodial title, but no longer. Allodial meaning;
“Free; not holden of any lord or superior; owned without obligation of vassalage or fealty; the opposite of feudal.” (Black’s Law Dictionary, 6th ed., “Allodial;” See also the decision of the Supreme Court of Pennsylvania; Wallace vs. Harmstad, 1863)
Government’s intervention into our lives has taken our property and has made us renters on government land.
The doctrine of eminent domain has no place in the relationship of the Federal Government with the States or the individual. The Government must receive the permission of the State before it can take possession of land within the States’ borders.
If government can only reach a constitutional goal by violating the liberties and property of the citizens then these leaders have certainly been misplaced. The courts have stated that it is unthinkable that one liberty need be surrendered in order that another one be enjoyed. (Murdock vs Pennsylvania, 319 U.S. 105)
“There must be a common basis for federal and state eminent domain, and it is found in sovereignty pure and simple.” (“The Law of Eminent Domain in the United States,” by Carman F. Randolph; Little, Brown, and Co. (1894); p. 3)
Yes, eminent domain is an element of sovereignty, but in respect to property, government, under this Constitution, is not sovereign and property is not feudal. Therefore the conclusions drawn by government are wrong. Historians of the Constitution generally conclude that private property came before government and was not subject to control by popular majority. (See Charles A. Beard, “The Enduring Federalist”)
Where the ‘public interest’ is concerned, there is none when dealing with private property for “rights are not subject to any vote and do not depend on any elections.” (Lucas vs. Colorado General Assembly, 377 U.S. 713)
“The moment the idea is admitted into society that property is not sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. Property must be secured, or liberty cannot exist.” (Quote by John Adams, Ezra Taft Benson, “An Enemy Hath Done This”; Supreme Court decision, Justice Field concurring, Butchers’ Union Co. vs. Crescent City Co., 111 U.S. 746 at 757; Adam Smith’s, “Wealth of Nations,” Bk. I, chapter 10.) (emphasis added)
Property, having its origin in man’s application of his faculties to the natural resources, recognizes that the person has the natural right to (1) posses, (2) enjoy, (3) dispose of, and (4) lawfully defend his property. In short, he has control! To hinder or eliminate any of the four, or any other elements of property, is to render the others inoperative and is a violation of the sacred right to property.
“…Any thing which destroys one or more of the elements of property to that extent destroys the property itself.” (,C.J.S., section 5, ‘property’ p. 169)
It is important to remember this when you feel inclined to believe that you own property. These four elements of ‘property’ must be present as they define the individuals’ ‘control’ of his property. It is what government has done to our control, that draws our attention. By our apathy we have given away our property.
Our government has no sovereign rights over the people or property. Yet governments’ control of property is readily observable by forced taxation, the abuse of administrative power, such as this ‘taking’, that has been unleashed against the citizens of this country.
This is exemplified by actions of government against the native American homelands, against individuals, as those related in the December 1991 issue of Reader’s Digest. (Danger! Bureaucrats at Work, Reader’s Digest, Dec. 1991; p. 112-116)
This “assumed” authority to regulate property is taken under the “police power” and the false assumption of eminent domain. On the face, these have legitimate defenses, yet when applied in a manner as they are today, that is forced compliance (the mafia call it ‘protection’), we become a serf or caretaker for our government. If we fail or refuse to ‘pay the rent’ to our government, they will forcefully remove us from our property and give it to another who did not work it. This action has the negative effect of law.
Say what you will, the government controls the land and enforces its domination by the gun. Without control of our property, we do not own it. We rent it from our ‘government partner.’ Control is the essential ingredient of ownership and by control, I mean complete control. If government can interfere in the slightest, then the individual’s control of property is violated. Senator Strom Thurmond, made this statement back in 1964;
“Today, human rights in property are being restricted and threatened as never before. Much of this is being done in the name of ‘social justice’ and ‘civil rights.’ What it all adds up to, however, is an attempt to level all men by government regulation and rule. This is so-called economic equality, better known as socialism.” (quoted by Ezra Taft Benson, “An Enemy Hath Done This,” p. 20)
Another article in Reader’s Digest by Representative Jimmy Hayes portrays the plight of several land owners who spent thousands of dollars fighting government bureaucrats in court (EPA and the 1972 Clean Water Act), for the right to control their land and ending up losing, and paying hundreds of thousands of dollars in fines and spending time in prison. ( “Danger! Bureaucrats at Work,” Reader’s Digest)
If this isn’t a clear violation of property and control of individuals under the false assumption of eminent domain and police powers — and we set by and let it happen!
Property does not exist because of government, nor was it introduced by its permission! If the right exists in nature, it cannot be regulated or removed by majority vote! The power or authority, for government to take another’s’ property, whether it be money or land, or whatever, has never existed, because those who created this government did not posses the right. Therefore;
“The right never existed, and the question whether it has been surrendered, can not arise.” (M’Cullock vs. Maryland, supra., at p. 431)
It never hurts to re-emphasize one of the correct principles the court recognized; “Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” (Miranda vs. Arizona, 384 U.S. 436 at 491)
Former Supreme Court Justice George Sutherland has put these principles into the proper perspective, when during an address he stated;
“Property, per se, has no rights, but the individual– the man — has three great rights, equally sacred from arbitrary interference; the right to life, the right to liberty, and the right to property. The three rights are so bound together as to be essentially one right. To give man his life, but deny him his liberty, is to take from him all that makes life worth living. To give him liberty but take from him the property which is the fruit and badge of his liberty, is to still leave him a slave.” (Justice George Sutherland, address to the New York Bar Association, Jan. 21, 1921; quoted by Ezra Taft Benson, “This Nation Shall Endure,” Deseret Book, 1977, p. 85; See also Lynch v. Household Finance Corp., 405 U.S. 538, at 552 (1971)
Of these three great pillars of our natural rights mentioned by Justice Sutherland, property would stands out because it represents the “fruit” and “badge” of man’s liberty and labor. By looking at the results of our labor, what has happened to it, in this case under the guise of taxation and eminent domain we can best judge the condition of our liberty.
“No liberty is possible unless a man is protected in his title to his legal holdings and property and can be indemnified, by the law, for its loss and destruction. Remove this right and man is reduced to serfdom. (Ezra Taft Benson, “This Nation Shall Endure,” p. 85)
The doctrine of ‘eminent domain’ is a weak excuse for theft. Theft on the part of the federal government in its dealings with the states and both governments in their dealings with the people of this nation.
Some of this information is contained in a study called “JURISDICTION OVER FEDERAL AREAS WITHIN THE STATES, REPORT OF THE INTERDEPARTMENTAL COMMITTEE FOR THE STUDY OF JURISDICTION OVER FEDERAL AREAS WITHIN THE STATES”
“The Facts and Committee Recommendations Submitted to the Attorney General and transmitted to the President April 1956”
This is an interesting study which evidently has not been read by Congress. Some of the interesting parts state:
“ the Federal Government, as of a recent date (1954), owned 405,088,566 acres, or more than 21 percent of the continental United States. It owns more than 87 percent of the land in the State of Nevada, over 50 percent of the land in several other States, and considerable land in every State of the Union. (Page 3)
“[t]he Congress provided by a joint resolution of September 11, 1841 (set out in … sec. 355 of the Revised Statutes of the United States), that thereafter no public money could be expended for public buildings [public works] on land purchased by the United States until the Attorney General had approved title to the land, and until the legislature of the State in which the land was situated had consented to the purchase.” (Page 8)
Has the federal government attempted to purchase the land taken in Utah? Has the Utah State Legislature agreed to the purchase of these lands by the federal government?
Again these land acquisitions for the most part took place in the 1930’s! (Page 9 of the report)
Do we care? I hope so.
Sincerely yours,
Sherwood
