'The Property Clause' Article 4 Section 3 Cause 2 (Let the Records Show!)

**Sonny Tufts** · 02-06-2016, 11:11 AM

Originally Posted by erowe1

Thomas Jefferson sure thought it was conceivable.

Yet Jefferson was apparently persuaded by Madison and others that the Treaty Power gave him and the Senate the authority to effect the Louisiana Purchase.

**Weston White** · 02-07-2016, 12:27 AM

Originally Posted by Sonny Tufts

Yet Jefferson was apparently persuaded by Madison and others that the Treaty Power gave him and the Senate the authority to effect the Louisiana Purchase.

...And what exactly did he do with those lands? Did he go and create a BLM, FS, DFS, FWS, NPS, et al, to rule over it via federal regulations and costumed goon-squads with weapons and hi-tech?

Fast forward today, it is epically disgraceful:

The federal government owns roughly 640 million acres, about 28% of the 2.27 billion acres of
land in the United States.

https://www.fas.org/sgp/crs/misc/R42346.pdf

**erowe1** · 02-07-2016, 02:00 PM

Originally Posted by Sonny Tufts

Yet Jefferson was apparently persuaded by Madison and others that the Treaty Power gave him and the Senate the authority to effect the Louisiana Purchase.

I don't believe that's accurate. And it still goes against what you said about the inconceivability of the position.

More importantly, the Louisiana purchase was not for a park or wildlife refuge. Owning land doesn't give the federal government license to use that land to exercise unconstitutional powers.

**erowe1** · 02-07-2016, 02:01 PM

Originally Posted by Sonny Tufts

If the federal government does something on its property that violates a specific constitutional provision, it would be unconstitutional -- e.g., if it required that all park rangers had to be white Methodists.

IV.3.2 would be unnecessary if Congress were limited to the uses set forth in I.8.17. It follows that IV.3.2 must grant Congress power in addition to that contained in I.8.17.

The 10th Amendment is a specific constitutional provision.

The Constitution doesn't limit the federal government primarily by listing things it can't do, but by enumerating the things it can, and forbidding it to exercise any powers outside those enumerated.

**Sonny Tufts** · 02-07-2016, 03:03 PM

Originally Posted by erowe1

I don't believe that's accurate. And it still goes against what you said about the inconceivability of the position.

More importantly, the Louisiana purchase was not for a park or wildlife refuge. Owning land doesn't give the federal government license to use that land to exercise unconstitutional powers.

II.3.2 is a grant of power over federal lands -- a power that's independent of the other powers granted under I.8. It doesn't get any clearer than that.

Look, this isn't rocket science. I.8.17 is limited by its terms to land acquired by cession or purchase from the States. Once you concede that the federal government can acquire land by other methods (e.g., a treaty), then the next question is: who gets to decide what to do with that land? The answer under the Constitution is plain: Congress does, per III.3.2. And there's absolutely nothing in the Property Clause that restricts what Congress must do with that property. There's nothing about forming States out of it; nothing about selling it; nothing about turning it over to existing States; nothing about having to use it for forts, magazines, arsenals, etc.. III.3.2 clearly and unambiguously gives Congress the discretion to determine what to do with the property. And if Congress decides to do something that doesn't violate some other constitutional provision, then its action with respect to the property is obviously constitutional.

**erowe1** · 02-07-2016, 03:40 PM

Originally Posted by Sonny Tufts

II.3.2 is a grant of power over federal lands -- a power that's independent of the other powers granted under I.8. It doesn't get any clearer than that.

Where's the part about parks and wildlife refuges?

**Weston White** · 02-08-2016, 01:22 AM

Originally Posted by Sonny Tufts

II.3.2 is a grant of power over federal lands -- a power that's independent of the other powers granted under I.8. It doesn't get any clearer than that.

Look, this isn't rocket science. I.8.17 is limited by its terms to land acquired by cession or purchase from the States. Once you concede that the federal government can acquire land by other methods (e.g., a treaty), then the next question is: who gets to decide what to do with that land? The answer under the Constitution is plain: Congress does, per II.3.2. And there's absolutely nothing in the Property Clause that restricts what Congress must do with that property. There's nothing about forming States out of it; nothing about selling it; nothing about turning it over to existing States; nothing about having to use it for forts, magazines, arsenals, etc.. III.3.2 clearly and unambiguously gives Congress the discretion to determine what to do with the property. And if Congress decides to do something that doesn't violate some other constitutional provision, then its action with respect to the property is obviously constitutional.

II.3.2, III.3.2?

Not entirely. It provides only the grant of power to own, to dispose of, and to legislate over such lands, only as is NEEDFUL--ergo, to be constitutional, the question is not does it violate another provision of the U.S. Constitution, but does the U.S. Constitution whatsoever afford the provision.