Federal Acquisition of Land Within States
Does the federal government’s purchase of lands within the boundary of a state require the consent of the state legislature? If we are in a sovereign state, the answer is absolutely, yes! As a Constitutional Republic, if our elected representatives are not accountable and do not uphold our state sovereignty and individual liberties, then we are lost.
Although the Enclave Clause of the U.S. Constitution, Article I, section 8, Clause 17, authorizes Congress to purchase, own and control land within the boundary of a state, it is very specific and limiting as to what type of lands the federal government can own and control within a given state. It also leaves no doubt that the state legislature has to relinquish control of those lands. The relevant portion of the Enclave clause reads:
Congress may exercise exclusive legislative “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;”
Can any agency of the federal government come into a state and purchase land without state authorization as any other buyer would? Is it a private property right for a property owner to sell to the federal government? A proper reading of the Enclave Clause shows the answer to both of these questions is NO.
Had the founding fathers intended the federal government to have this authority they would never have included the Enclave provision in the Constitution. Had the people believed the constitution would allow the federal government to acquire any land it desired and displace the states authority they would never have allowed their state to ratify the Constitution. Clearly, issues other than private property rights must have been at stake, and those issues must have been of sufficient gravity to compel the founders to include this clause and for the people to accept it.
There are many examples in which the supreme Court has upheld the state’s position to determine who can own and control land within the boundary of a state. An example of this is in a case where a citizen of the State of California willed property to the Federal government. The State, by act of the legislature, denied the transfer of title to the federal government. The United States sued California to force the state to relinquish control of the land the federal government considered theirs. The supreme Court Ruled in favor of the state’s position disallowing the federal government to claim ownership of the willed property.
A portion of the statement in the court’s decision may help us to understand; “California’s decision (by act of the legislature) to permit itself and its subordinate municipalities to be unlimited governmental beneficiaries under the wills of its domiciliaries is based on a permissible distinction,” In another passage, the Court elaborated on its view: “The United States would have no claim here were it not for wills probated under California law. The Fox (United States v. Fox, 94 U.S. 315) case is only one of a long line of cases which have consistently held that part of the residue of sovereignty retained by the states, a residue insured by the Tenth Amendment, is the power to determine the manner of testamentary transfer of a domiciliary’s property and the power to determine who may be made beneficiaries. It would be anomalous to hold that, because of an amorphous doctrine of national sovereignty, federal constitutional law reached into a California statute and made impotent that state’s restrictions on the designation of beneficiaries.”
The idea that states hold the power to determine the manner and context of transfers of property is the foundation of statehood. This Statement by Thomas Jefferson is another example of our founders reasoning on this matter: “Can it be thought that the Constitution be intended that for a shade or two of convenience, more or less, Congress should be authorized to break down the most ancient and fundamental laws of the several states; such as those against Mortmain, the laws of Alienage, the rules of descent, the acts of distribution, the laws of escheat and forfeiture, the laws of monopoly? Nothing but a necessity invincible by any other means, can justify such a prostitution of laws, which constitute the pillars of our whole system of jurisprudence.”
How have we gotten to the point where many will argue that to interfere with federal land acquisition is unconstitutional? Where did the idea come from that there is a right for individuals and other entities to sell to the federal government without requiring the consent of the state legislature? Part of the answer to this misconception lay in two supreme Court decisions. These two activist court decisions known as, Kohl and Ft. Leavenworth, did expand federal authority beyond a strict reading of the Enclave Clause. In these two cases the justices “discovered” a Federal right of eminent domain that was neither specifically nor implicitly granted by the people in the Constitution. There is no doubt an expansion of authority was granted by the Court. This was an act of sheer judicial arrogance by men in high places.
Although these decisions do expand federal authority, they have been misread to the point of giving the federal government complete authority to acquire lands within the boundary of states without that state’s Consent. This is a complete misreading of the text of these decisions. A close reading of these cases show the right of eminent domain granted in the decisions was only for purposes “essential” to the Federal government’s “independent existence and perpetuity” or “for the special purposes named.” These “essential purposes” are the constitutionally enumerated purposes in Article I, section 8, clause 17 of the constitution. This close reading of the cases show the court definitely did not rule to allow the federal government uncontrolled authority to purchase lands within a states. Eminent domain is a sovereign power. Therefore, it can only be exercised when government is acting within its sovereign power as enumerated under the constitution. Any other federal purchases must still be authorized by the state legislature.
“It cannot be presumed that any clause in the Constitution is intended to be without effect.” Thomas Jefferson spoke to the consequence of Federal usurpation of state’s constitutional rights: “To take from the states all the powers of self government, without regard to the special delegations and reservations solemnly agreed to in the federal compact is not for the peace, happiness, or prosperity of those states.”
Now let’s examine a couple of relevant questions. Why are federal agencies able to purchase lands within states without the legislature’s approval? Why should the State assert itself with respect to purchases of land within its borders?