THE BUNDY STANDOFF—A
CENTURY OF ABUSE
Michael S. Coffman, Ph.D
May 29, 2014
Part II—Unconstitutional Deviance and the U.S. War on the West
After rapid Western Expansion to the Rocky Mountains in the nineteenth century, the United States suddenly reversed its land disposal policy by not ceding its public lands to the states, ignoring 100 years of well-established law and constitutional limitation. U.S. District Courts stopped using constitutional law and started using case law, opening the law to judicial corruption. This policy change was driven by progressive northeastern financiers and industrialists committed to take the West for their own benefit.
HUMAN NATURE DICTATES that if no one is legally responsible for something, people who benefit from using that something will tend to do whatever is fast and cheap to get what they want. That’s true for anything. Natural resources are no exception. Without any oversight, it was not long before Western mining and timber companies were causing harm to the resource base on public lands in the late 1800s. Progressives of the day used the exaggerated writings of naturalists like John Muir to enrage Eastern audiences to the alleged destruction. Just as they do today, an ill-informed population demanded it be stopped.
Indeed, something had to be done. The government could have just deeded the land to the ranchers, timber and mining companies as a Preemption Right as they had done east of the Rocky Mountains. However, giving the huge areas of arid range and forest land needed to maintain economic viability to individual ranchers and timber companies stuck in the craw of Easterners, especially the progressives of the day. Besides, it was argued that the preemption and homestead laws had failed to accomplish their intended purpose. Instead of being settled by long-term farmers and ranchers, the 160 acre homesteads were too small to be economically viable and most homesteaders sold out to speculators.
Little did that generation know that the seeming failure of the Preemption and Homestead Acts would eventually provide the greatest blessing the world has ever known as the Midwest became known as the bread basket of the world. At the time, however, the program seemed to have failed. That was the reason Congress revoked the preemption laws and kept the land by passing the Forest Reserve and General Revision Acts of 1891. In doing so, Congress violated the U.S. Constitution.
Article IV, Section 3, paragraph 2 of the Constitution gives Congress the “power to dispose of and make all needful rules and regulations respecting the Territory or other property belonging to the United States.” It dealt with territories, not states. Conversely, as discussed in Part I, Article I, Section 8 of the Constitution severely limits the type of land the federal government can actually own to federal highways, the District of Columbia and, with the consent of the state legislature of “Forts, Magazines, Arsenals, Dock-Yards, and other needful buildings.”
Obviously, most of the nearly 650 million acres now allegedly“owned” by the federal government west of the Rockies do not qualify constitutionally. True, the Treaty of Guadalupe Hidalgo ceded the land to the U.S. government in 1948. However, most of that land was already given by Mexican grants to settlers, mining companies or timber companies as working land. These settlers were protected with strong property rights language in Section VIII of the treaty.
According to the Equal Footing Doctrine those rights should have been kept by the landowners when the territories became states. The U.S. government did recognize these property rights – except when it didn’t. The U.S. government ignored the treaty when it served the purpose of the unscrupulous politicians, bureaucrats and industrial tycoons. The convoluted history of what happened from 1848 through the early 1900s is a book in itself.
The foundational basis in deciding the legal ownership rests on two concrete facts:1) the U.S. cannot “own” this land constitutionally, even though it claims it does. Upon entering the United States the new western state should have been given land not claimed by the settlers. They were not. 2) The Treaty of Guadalupe Hidalgo which is a constitutional instrument should have protected the settlers’ vested property rights. It did not.
On the other side of the issue, many property rights activists claim that since the federal government has no deed to the land, the government therefore has no rights. That’s true to a point. However, the Treaty of Guadalupe Hidalgo is the “deed.” The treaty gave the U.S. certain surface and sometimes mineral rights, often on the same land owned by the settlers. The Act of 1866 (see Part I) attempted to sort out the split estate concept with important but somewhat mixed results.
Congress passed the Organic Act of 1897, establishing “science-based” forest and range management guidelines and the use of grazing permits and fees for the newly minted forest reserves that were created in 1891. Scientific range management would morph in the later 1900s into the tool by which political objectives would be reached. The Transfer Act of 1905 created the U.S. Forest Service (USFS) within the Department of Agriculture. The Weeks Act (also known as the Organic Act) of 1911 allowed the USFS to purchase and create additional National Forests in the East.
The Taylor Grazing Act of 1934 established prior rights for the ranchers and eventually allowed the conversion of the old General Land Office in the Department of Interior into the Bureau of Land Management (BLM). Together the USFS and BLM today employ about 40,000 people who manage 446 million acres at a cost of over $7 billion a year. Totally, the U.S. controls over 30 percent of the U.S., amounting to over 50 percent of every state west of the Rocky Mountains. (See map)
As will be discussed in Parts III-VI, an incredible war between the federal government and western ranchers has been going on since 1891 mostly under the radar; pushed and funded by powerful northeastern progressive financiers and industrialists. What’s happening to Cliven Bundy and other ranchers is the result of that war. Central to what is happening today was the deliberate conversion of Constitutional law into case law in the courts, as Bundy and hundreds of thousands of Americans have found out the hard way. It has led to a very corrupted legal system that tragically has no fidelity to the restrictions imposed by the U.S. Constitution.
Constitutional Law vs. Case Law
Although most American’s are not even aware of it, courts no longer use Constitutional law in deciding cases. They now use case law. That wasn’t always the case. In fact, Constitutional law and principles were part of the early education of children. French judge, statesman and political writer Alexis de Tocqueville observed a phenomenal thing in Volume II of his Democracy in America when he visited America in 1831:
If you question [an American] respecting his own country…he will inform you what his rights are and by what means he exercises them…. You will find that he is familiar with the mechanism of the laws…. The American learns to know the laws by participating in the act of legislation…. The great work of society is ever going on before his eyes, and, as it were, under his hands. In the United States, politics are the end and aim of education.
The concept of “natural” sovereignty of citizens over the state was the foundation of the U.S. Constitution and culture of the United States. It created the “American Way” which was unique in the history of mankind. In early America, Constitutional law and these principles were taught in school. They were so strong and generally known by every American that they quickly extinguished the early attempts by progressives that the state is sovereign over the citizen. Today, most Americans commonly believe that the federal government is sovereign over the state, the state over the local government, and the local government over the citizen. That is opposite of what the U.S. Constitution actually says and will create tyranny eventually. Americans are blind with ignorance of their heritage and liberties. Today, not even attorneys know what the average American knew in the 1800s.
However, a group of men who coveted power gradually introduced the statist into the American education system. They had a goal; the same goal that megalomaniacs have had throughout history—to rule the world.
These would-be rulers knew they could never attain that goal as long as the people understood the U.S. Constitution and the principles upon which it stood. As students of history, they knew that nations ruled by the statist model were populated by citizens who could be easily manipulated to do what the rulers wanted. After all, socialism and communism train people from early childhood to obey the all-knowing government—the source of all power. Tragically, they have instilled this goal for several generations in America’s public school system.
Widespread constitutional understanding began to diminish in the late nineteenth century when Christopher Langdell was hired by Harvard University in the mid-1800s expressly to change the direction of the highly influential Harvard Law School. Simultaneously, progressives were first attempting to weaken the interpretation of the U.S. Constitution to mean anything they wanted. It wouldn’t be called a “living document” in its modern form until Oliver Wendell Holmes spoke of the concept, if not the actual phrase.
Prior to Langdell, law schools taught law by lecturing from the Constitution and law itself. When Langdell became Dean of the Harvard Law School, he taught law by reviewing previous case law. In doing so the Constitution and the actual legislated law was ignored. By the twentieth century, the case law approach was adopted by all U.S. law schools. U.S. District Court cases were no longer decided by the U.S. Constitution or the written law, but by previous cases. By incrementally making small changes in lawsuits, each successive decision can actually reverse the original intent of the U.S. Constitution or legislated law. It is legislation from the bench.
No longer were students forced to dig into constitutional wording and intent, but instead were taught how appellate courts ruled in specific cases. Although the District Court can use the U.S. Constitution and the actual law, it rarely does. Often it is because the attorney representing the rancher or citizen has never been taught real constitutional law. Tragically, actual teaching of the Constitution in law schools is almost nonexistent today. This is not an exaggeration. In the case of Bundy, revisionist case law was applied by an agenda driven and arrogant BLM to put Bundy’s fellow ranchers out of business.
At the risk of oversimplification, if it were not for the Forest Reserve and General Revision Acts of 1891, and revisionist case law, much, if not most of this USFS/BLM land and its associated management costs would now be in private or state ownership. There wouldn’t be a war on ranchers and other natural resource users because there would have been no power for radical environmentalists and agency bureaucrats to create the growing evil they have inflicted over the past 60 years.
The accusation by environmentalists and federal agencies that private owners would have destroyed these vast tracts of lands is totally unjustified. While it may have been true with open un-owned range, history has clearly shown that once a resource is in private hands, management quality will generally increase because of self-interest and the need to protect the resource for future income. The deterioration of forests and rangelands managed by the USFS and BLM today is a tragic testament to what happens with public ownership subject to special interest political pressure.
So is Bundy right or wrong? Constitutionally, he seems to be right, but case law says he isn’t. That may change. Bundy now has standing in the U.S. Court of Federal Claims. This little known court is focused on deciding constitution-based lawsuits, not administrative lawsuits. Bundy gained standing when the BLM confiscated his cattle, destroyed his water troughs and corrals, and then deliberately killed several head of cattle, including two of his breeding bulls. Those are within his century-old property rights granted by the Treaty of Guadeloupe Hidalgo. If he can get the financial support, he may actually win on a constitutional basis. It will be interesting. For part one click below.
© 2014 Michael Coffman - All Rights Reserved