Militia Ranchers, Public Lands, and the Constitution

Since the beginning of January this year (2016), a rancher-led militia group organized, and took control over Malhuer National Wildlife Refuge in Oregon (public lands).  The result was an almost 30-day standoff between the rancher-led militia group, and Federal, Local, and State authorities.

Leader of the rancher militia—Ammon Bundy—radicalized fellow ranchers under a common grievance: the Federal government was encroaching and restricting the use of public lands in violation of the constitution.  However, the Bundy Crew has yet to point out a single item in the constitution where the ranchers have extrapolated this abuse by the government, and, in turn, enforce their right to the land.  Indeed, in regards to public lands, the constitution reads at Article I, Section 8, Clause 17:

“To exercise exclusive legislation in all cases whatsoever, over such district (not
exceeding ten miles square) as may, by cession of particular states, and the acceptance of
Congress, become the seat of the government of the United States, and to exercise like
authority over all places purchased by the consent of the legislature of the state in which
the same shall be for the erection of forts, magazines, arsenals, dockyards, and other
needful buildings.”

Thus, the reading above provides for the creation of the capital of the United States, as well as leaving open the “authority over all places purchased” by the government.  The latter aspect of the clause, narrows the government’s purchases for particular reasons: “forts, magazines, arsenals, dockyards, and other needful buildings.”

Theodore Roosevelt exponentially expanded the ability of the government to use public lands, or otherwise restrict public lands, by his conservation efforts.  Here, Theodore Roosevelt created the U.S. Forest Service, as well as the nation’s first National Parks, Preserves, Forests.

Roosevelt was able to confer such an expansive program and authority to the government under the words “other needful buildings.”  Consequently, Theodore put 230 million acres under preservation.

A confusing point on this topic is that the lands have been dubbed “public” lands.  Here, many people argue that because it is public lands, the government should be limited in its ability to restrict its use, if at all.  This argument is flawed.  The government holds public lands as the trustee of the lands for the people.  Thus, their decisions on the lands is not to serve their own purpose, but to serve the purpose of the citizens as a whole.  Moreover, the government also has an interest in protecting animals, indigenous artifacts, and, naturally, mother nature.

In conflict with the government’s purpose of holding the lands as a trustee for citizens of the United States, the Bundy Crew is attempting to controvert this purpose by using it for individual purposes.  Further, and as mentioned in a “Footnotes” episode of Millennics, land held by the government is still available for use by ranchers at a 90% discount, when compared to private lands for the same purpose.  Therefore, the government has a fiduciary duty to the citizens in their role of trustee of the lands, where they must not only protect the lands, but the lands must be used to benefit citizens as a whole, not a finite group.

In similar vain, the National Center for Constitutional Studies (NCCS) perverts words by John Locke.  Here, the NCCS argues that John Locke used the words “dominion,” where dominion means control, and control means exclusiveness.  Thus, John Locke argued for private ownership of lands.  The NCCS uses this as their foundation to argue against lands under government control.

Taken out of context, this argument would seem valid; however, in context, that is not what John Locke was advocating for.

First, John Locke argued for private land to subdue man’s natural inclination to plunder.  Locke argued that without some restraining method, man, like animals, would take what he wants from another if he could.  Thus, an intrinsic duty of the government, would be to recognize private ownership to deter such actions.

Second, this argument was presented in an effort to continue the breakdown of landownership in England.  In the 1600s, during which John Locke lived, England was still in a Feudal system.  A Feudal system of landownership maintained ownership to the King, and others simply worked, or lived on the land.  Thus, Locke was presenting an argument to further the momentum of the already degrading feudal system.

NCCS incorrectly applies Locke’s thought process on private property over community property.  NCCS suggests that Locke reasoned that most land should be held privately, and not in common, because human endeavor takes precedence.  But this is misplaced.  To defeat a feudal system, what Locke did say was man “have a right to their preservation.” See, Two Treatises of Government, John Locke.  Locke mentions that it is unreasonable for man to ask every person permission to obtain the fruits of the land.

Further, Locke makes a connection with labour and what should be considered personal property.  Notably, he meant this in a broad context, where simple any labor put in to obtain something, should rightfully be that of the persons:

“Whatsoever then he removes out of the State that Nature hath provided, and left it in, he
hath mixed his Labour with, and joined to it something that is his own, and thereby
makes it his Property.” Ibid.

Therefore, it is evidently clear that John Locke never opposed the government to be a trustee to lands.  Rather, what he did oppose was the feudal system, and the concept of common property, where the feudal system circumscribed private ownership to simple tenancy, and communal ownership flat out denies the private option.

Further, Locke never contemplated the notion that the government could be a trustee for the people, whereby the protection of these lands coupled with the available use of these lands.  Indeed, during John Locke’s lifetime, the government never held anything as a trustee for the people, nor was there the existence National Forests, Preservations, and Parks.

Thus, the NCCS argument is fatal in many constructs, perverting the nature of John Locke’s words and reasoning on private property.  Additionally, the constitution bestows such authority to the government to hold lands as they need, and that authority can be, and was, widely expanded under statutes, such as Theodore Roosevelt’s conservation efforts.

Likewise, the militia ranchers have misinterpreted the constitution, perhaps purposely, to advance their own needs.  But, how then, if these ranchers wish to use this land for themselves to advance their singular purpose, could the lands remain public lands for the benefit of all citizens.  Instead, the ranchers are intending to revert public lands back into private ownership, denying all citizens the luxury and fruits of this nation’s lands that United States holds as trustee for all citizens through National Parks, Preservations, and Forests.

Authored by: Jonathan J. Cianfaglione