BUNDY: ONE MORE TIME

April 28. The sixty-third anniversary of my marriage to the beautiful Polly. I woke up at 4AM.
Too old to play slap and tickle. Besides, I have a cold. So I write another blog.

I am still being lectured by those who think my opinion in the Bundy matter is contrary to the law. So let’s begin at the beginning.

 Here is what Article I, Section 8 of the United States Constitution says:

[Congress shall have the power] 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…

So, under the Constitution, the federal government’s exclusive right to make laws concerning land in the United States, is limited to Washington, D.C. and such other land as complies with these four conditions:

1.   It has purchased

2.   With the consent of the State Legislature

3.   For Forts, Magazines, Arsenals, dock Yards

4  For other needful Buildings

You will please note that Article I, Section 8 does not mention:

1.   Parks

2.   Wet lands

3.   Habitats for endangered species

4.   Forests

5.   Mineral rights

6.   Grazing rights

7.   Renting land to others as a source of revenue 

8.   Etc., etc., etc.

No one questions the right of the United States to make laws concerning real estate OUTSIDE THE UNITED STATES; i.e. Guam, Puerto Rico, etc. But inside the United States, the federal government has no power to make laws concerning real estate, except as granted under Article I, Section 8. And that means it has no power to make laws concerned vacant land situated in one of the fifty States.

So what can the federal government do with 86% of Nevada? Just two things:

1.   Sell it

2.   Give it to the State or some other entities.

Now just in case you may still think this is just the rambling of an old, retired, out-of-touch State Court Judge, I invite you to read a very pertinent article at:  http://www.constitution.org/juris/fedjur1.htm, written by Lowell H. Becraft, Jr.
,209 Lincoln Street, 
Huntsville, Alabama 3580.

Mr. Becraft cites the following state and federal court decsions:

M'Ilvaine v. Coxe's Lessee, 8 U.S. (4 Cranch) 209, 212 (1808)

Harcourt v. Gaillard, 25 U.S. (12 Wheat.) 523, 526, 527 (1827)

People v. Godfrey, 17 Johns. 225, 233 (N.Y. 1819)

Commonwealth v. Young, Brightly, N.P. 302, 309 (Pa. 1818),

United States v. Cornell, 25 Fed.Cas. 646, 648 No. 14,867 (C.C.D.R.I. 1819)

New Orleans v. United States, 35 U.S. (10 Pet.) 662, 737 (1836)

New York v. Miln, 36 U.S. (11 Pet.) 102 (1837)

Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845)

Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525, 531, 5 S.Ct. 995 (1885)

Surplus Trading Co. v. Cook, 281 U.S. 647, 50 S.Ct. 455 (1930)

United States. In James v. Dravo Contracting Company, 302 U.S. 134, 58 S.Ct. 208 (1937)

Silas Mason Co. v. Tax Commission of State of Washington, 302 U.S. 186, 58 S.Ct. 233 (1937)

Wilson v. Cook, 327 U.S. 474, 66 S.Ct. 663 (1946)

Pacific Coast Dairy v. Department of Agriculture of California, 318 U.S. 285, 63 S.Ct. 628 (1943)

Penn Dairies v. Milk Control Commission of Pennsylvania, 318 U.S. 261, 63 S.Ct. 617 (1943)

S.R.A. v. Minnesota, 327 U.S. 558, 66 S.Ct. 749 (1946)

Paul v. United States, 371 U.S. 245, 83 S.Ct. 426 (1963)

United States v. State Tax Commission of Mississippi, 412 U.S. 363, 93 S.Ct. 2183 (1973)

Representatives of the Western States met in Salt Lake City recently for the purpose of addressing the problems associated with federal ownership of vacant lands.

Maybe they should talk about calling an Article V amendatory constitutional convention.

I can give them a few names of folks who think that would be a good idea. 

MORE BUNDY

I often receive letters and comments about my blog and I very much appreciate and enjoy the chance to banter with friends and readers. Here is a brief exchange which may help to explain my position.

Hey Judge,

I must respond to your message regarding Mr. Bundy of Nevada.  Over 20 years Mr. Bundy has lost numerous cases in Court regarding his non payment of grazing fees on federal lands.  I'm sure if you or I chose to not pay the federal government our taxes, we certainly would be subject to the consequences of our actions.  Not being a lawyer or judge, I am assuming that the judgments by the courts handed down over the years regarding Mr. Bundy's failure to pay up are lawful and correct.  Therefore, he is subject to the consequences of his actions.

We are a nation of states who have agreed to the federal system of government and who abide by the U S Constitution, a government which Mr. Bundy does not recognize.......how convenient.

As a citizen, not a lawyer, I consider Mr. Bundy a welfare cheat and his time to pay up is well past due.

Respectfully,

Dan Santucci

Dan:

Thanks for your thoughtful comment. I'm afraid my blog dealt with a very fine legal point which is difficult to explain. What I basically said, and believe, is that when a state is admitted to the union it takes jurisdiction over all the territory within its borders, even that which is still owned by the federal government. If the feds want to keep someone off of their land in Nevada they should have to go to the Nevada courts, just like any other owner of land in Nevada. 

The feds see it differently. In their view the land is not in Nevada, it is a separate federal territory like Puerto Rico. That's why they go to federal courts to enforce their rights, and that's why they enforce their rights with guns instead of pursuing a civil remedy like filing a lien against Bundy's property.

TEB

BUNDY REVISITED

John C. Calhoun was the seventh Vice President of the United States under both John Quincy Adams and Andrew Jackson. He was the Secretary of War in the administration of James Monroe, and Secretary of State under John Tyler. He represented the State of South Carolina in the United States Senate from 1845 until his death in 1850.

A lawyer and a graduate of Yale University, Calhoun was known as an able political theorist in his day. Some of his ideas would shock the ears of Americans today.

Calhoun was an adamant defender of slavery, and he did it in a sophisticated and academic fashion.

To begin with, he took issue with the Declaration of Independence’s famous assertion that all men are created equal. He insisted that only two human beings were created: Adam and Eve. All the rest were born. And they weren’t born as men; they were infants.

To Calhoun, liberty was not a right. Nor was it a gift. Liberty, to Calhoun, was a prize, a reward, if you will, conferred only on human beings who earned it by their conduct and their character. Enlightened, civilized, law abiding, virtuous men and women were capable of enjoying freedom. For them, very little government is needed. Ignorant, greedy, violent, selfish people require more and more government as their conduct intrudes on the freedom of others.

Calhoun believed that the worst kind of despotic dictatorship is better than anarchy. Like James Madison, he agreed that if men were angels, no government would be necessary.

Calhoun was a slave owner who defended the institution of slavery in the southern states.  He was a candid and unapologetic racist, who believed that people of African descent were genetically inferior to those of Caucasian ancestry.

Assuming Calhoun was true to his own words, however, it is hard to believe that he would not have agreed with and applauded Doctor Martin Luther King, Jr.’s dramatic “I have a Dream” speech. Especially King’s hope that someday his children would be judged by the content of their character and not the color of their skin. Presumably both Calhoun and Madison would concede that black angels wouldn’t need government either.

I thought of Calhoun  as I read about Cliven Bundy’s stupid and stumbling attempt to explain his inexplicable racial comments. His Hollywood inspired vision of slavery as a life of family oriented, gospel singing, home-and- hearth security and happiness is not only disgusting and wrongheaded, it is an insult to the vast majority of Americans, black and white, who embrace the words of the Declaration of Independence in their true and transcendent meaning.

I am sure that my law professor friend who took me to task for defending “that wing-nutty cowboy” in Nevada has been gleefully chuckling over Bundy’s downfall.

I am left with the difficult task of reminding him that even guilty people are entitled to have a lawyer for their defense, that the ACLU has frequently defended the right of Nazi-type organizations to protest and demonstrate, and that even the most despicable villain is entitled to the protection of the constitution.

It’s an uphill battle, people being what they are.

Alexander Hamilton launched the Federalist Papers with the observation that political discourse is often characterized by an intolerant spirit, which unleashes a torrent of angry and malignant passions. Judging by their conduct, you would think, he says, that many partisans hope to make converts by the “loudness of their declamations and the bitterness of their invective.”

That said, I firmly believe that a sense of humor is critically essential to useful political discourse. I don’t mind a good natured barb or two being thrown my way, and I treasure long standing friends who can take a little kidding in their stride.

On the whole, I believe that politics is too serious to be taken too seriously.

WHO OWNS NEVADA?

The real estate that later became the State of Nevada was acquired by the United States by virtue of the Treaty of Guadalupe Hidalgo in 1848 which ended the Mexican War and called for the payment of some 15  million dollars to Mexico by the victorious United States.

Sixteen years later, President Lincoln authorized the folks in Nevada, without the required 60,000 inhabitants,  to hold a constitutional convention and apply for admission to the union.

It was 1864. The Civil War was in full blossom, and Lincoln was running for a second term.  The Nevada constitution was adopted on October 31, just eight days before  the election and immediately telegraphed verbatim to Washington, D.C. It was the most expensive telegraph ever sent, costing $3,416.77.

And so it was, that on the 31^st day of October, 1864, President Abraham Lincoln issued the following proclamation:

Whereas the Congress of the United States passed an act, which was approved on the 21st day of March last, entitled "An act to enable the people of Nevada to form a constitution and State government and for the admission of such State into the Union on an equal footing with the original States;" and

Whereas the said constitution and State government have been formed, pursuant to the conditions prescribed by the fifth section of the act of Congress aforesaid, and the certificate required by the said act and also a copy of the constitution and ordinances have been submitted to the President of the United States:

Now, therefore, be it known that I, Abraham Lincoln, President of the United States, in accordance with the duty imposed upon me by the act of Congress aforesaid, do hereby declare and proclaim that the said State of Nevada is admitted into the Union on an equal footing with the original States.

The Constitution of Nevada, which was approved by the President and the Congress of the United States begins with these words:

All political power is inherent in the people.

That statement, common to the constitutions of most of the American states, is not a mere academic observation.  Used in a constitution, it is an assertion of sovereignty.

What is sovereignty? Very simply, sovereignty is the right to use force to impose your will. It is the right to govern. The right to rule. The right to make laws.

Unlike other nations, sovereignty in the United States is dual; it is divided between the states and the national government. The national government has international sovereignty as a member of the family of nations on the planet. It also has interstate sovereignty, as defined in the United States Constitution, to regulate commerce among the several states of the American union.

The states have domestic sovereignty, which is often called the police power. It is the authority to regulate the affairs of the people. It encompasses the full range of governmental control over the activities of the people; criminal laws, marriage laws, real estate laws, corporations, education, licensing professions, occupations and businesses, health care. The list goes on and on. Basically, the domestic sovereignty of the states includes the right to legislate on any and every subject, unless there is an express constitutional prohibition.

The sovereignty of the national government is just the opposite. The United States may only legislate on subjects specified in the national constitution.

The United States of America owns something like 86 to 89 percent of the real estate in Nevada. But it does not own that land in the same sense that it owns Puerto Rico or Guam. It owns that land in the same sense that it owns post office buildings and federal courthouses all over the country.

It owns that land subject to the domestic sovereignty of the State of Nevada. The United States has no more rights to the land upon which Mr. Bundy has been grazing his cattle than Exxon or General Motors or Bill Gates would have if they owned the land.

If your dog wanders into my yard, I don’t own your dog. I can’t kill your dog, I can’t sell you dog and I can’t refuse to give it back to you. If you build a house on my lot and live there for twenty years, you will own the lot by adverse possession. If you build a baseball field on my lot and use it for twenty years, you will, by prescription, create and easement that will allow you to continue playing baseball there.

Whatever rights Mr. Bundy has to graze his cattle on federal land should be determined by Nevada courts according to Nevada law. Whatever rights the United States has to keep Bundy from grazing his cattle on federal land should be determined and enforced by Nevada law.

The United States of America may own the land next to Bundy’s home, but it is not the domestic sovereign on such lands. It does not have police power there. It can no more shoot people for trespass than any other land owner in Nevada.

GETTING OUT THE WORD

Monday morning.

Well, this business of being an author is a real learning experience.

Having finished the manuscript of my book, CONVENTION USA,  I put it up on a blog for all the world to see.

Some folks, including some very knowledgeable and beloved folks, have suggested that it is economically unwise to make my book available to anyone and everyone without charge. After all, who is going to buy a book you can get for nothing?

That’s logical. But I saw it another way. Who is going to buy a book that nobody wants?

I figured that if my friends and relatives don’t think the book is worth reading, who else will?

So I sent out an email to about 750 people. Unfortunately, the first time I did it, the link to the book didn’t work. My fault. Just another typo in the wrong place. Anyway, I sent it out again, and I am happy to report that as of tonight, something like 150 people have clicked on Chapter One.

They may not have read it, but at least they looked at it.

It looks like quite a few of the people who looked at Chapter One are looking at Chapter Two, Chapter Three and so on.

So, I am encouraged. And being encouraged, I continue to send queries to publishers and agents trying to find someone willing to put the book on the shelves at Barnes and Noble.

Truth is, I’m not doing this to make money. Polly will gladly testify that my passion for reforming the United States Constitution has had a negative cash flow in our household for a long time.

There is indeed much more to be done to rein in our dysfunctional government than one man and a laptop computer can do. The book may help. But if it is to make a difference, if it is to cause a ripple on the sea of American politics, it will have to be read by a lot more people than I can reach with a blog.

So here’s the deal: if you read the book, and if you think it carries a message that ought to be seen by the millions of our fellow citizens who no longer have faith in the federal government in Washington D.C. for whatever reason,  please pass the web site along to everyone in your address book with your recommendation.

I don’t know what it takes to ‘go viral’ a they say. I doubt that 10 or 20 thousand readers are likely to change the political discourse of the nation.

Still, if we can generate a mini-storm, it just may occur to the decision makers in the publishing business that the American People might just buy the book.

Of course, getting it published is not the main objective. Thomas Paine didn’t write Common Sense to sell pamphlets, but to start a revolution.

No matter how many people read the book, no matter how many buy the published book, it will be an exercise in futility unless it contributes to the calling of an Article V convention to propose amendments to the United States Constitution.

So that’s what it’s all about.

Thanks for reading, and don’t hesitate to write and tell me how it can be improved.

One more time, here’s the URL:

WWW.USCONCON.COM