How The West And The Constitution Were Lost, And Why You Should Care – Part II

Mandeville, LA – Exclusive Transcript – “Using this, it would be easy to make the case that the Bureau of Land Manglement actually is an unconstitutional use of a congressional power to make rules and regulations over territories.  The only thing they could do would be to carry out a specific rule or regulation that Congress itself had made.  In other words, the BLM can’t come in and write its own rules.  The Department of the Interior can’t write its own rules.  Of course, this was all overturned by another Supreme Court case, as I said, around 1911 or 1912 or so.”  Check out today’s transcript for the rest…

Begin Mike Church Show Transcript

Mike:  So what did Mr. Hayward write about?  Well, what he did was he researched: Okay, how did this happen?  That’s kind of what I just walked you through, although it took him 470 pages to get to it.  Here’s just a smidgen, a snippet of what Mr. Hayward wrote in How the West Was Lost.  He’s talking about these clauses that were written into these forest acts and grazing acts in the 1870s and 1880s.

[reading]

…these Disclaimer Clauses amounted to what most of us today would consider to be an exclusive sales contract of land belonging to another.  The only difference was that in this specific case, the proceeds went to the seller and not to the owner of the land, even after payment in full of an implied or de facto mortgage. However this may be, this, in and of itself, is not authority to retain federal ownership in perpetuity and to arbitrarily decide for the owner [the state] when and how or even if the owner should dispose of his land. There simply is no constitutional authority to do so. Further, I cannot make the case for the existence of the Disclaimer Clause without ignoring the findings in both Pollard v. Hagan and Coyle v. Smith, which declared that the Disclaimer Clauses were unconstitutional.

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The Forest Reserve Act of 1891 was the real beginning of Congressional expansion of power of the federal government over that of the states. It gave enormous power to the president, clearly beyond the confines of the Constitution. It effectively sacked the 10^th Amendment. Note the first part of Section 24 which is quoted again in part for ready reference:

“That the president of the United States may from time to time, set apart and reserve, in any state or territory having public land…”

[end reading]

Mike:  Wait a minute.   You must be thinking right now, [mocking] “Mitter Church, Mitter Church, that’s not in the Constitution.  That’s not an enumerated power.  The president doesn’t have the power to do that.”  That’s right.  And ladies and gentlemen, did you know that there were lawsuits in the 1890s and all the way through 1920 or so when Congress was trying to dole out one of its powers, an enumerated power, to an agency, the Supreme Court kept telling them: You can’t do that, dude.  Let me give you a great example here.  All of you Austrian School economic guys and gals, perk up.  Did you know that before a particular Supreme Court case, the appointment and assignation of the Federal Reserve as the bank of the United States or as the currency, how shall we say, launderer, official currency launderer would have been held to be unconstitutional?  That’s right, because it’s an enumerated power that Congress is supposed to carry out.  It doesn’t say that Congress can appoint someone to do its own job.  That’s the point of having the enumerated power.  Congress actually has to do the work.  Well, they don’t do the work, do they?  They let Ben Bernyankme and now this Janet Yellen character and all the other little cartel bankers at the various federal reserve offices, they let them do it.  Well, prior to 1912 or so, that was illegal.  The Supreme Court kept saying: You can’t do that.  Congress kept trying to do it in all areas of its jurisdiction, including land management.

Using this, it would be easy to make the case that the Bureau of Land Manglement actually is an unconstitutional use of a congressional power to make rules and regulations over territories.  The only thing they could do would be to carry out a specific rule or regulation that Congress itself had made.  In other words, the BLM can’t come in and write its own rules.  The Department of the Interior can’t write its own rules.  Of course, this was all overturned by another Supreme Court case, as I said, around 1911 or 1912 or so.  I can’t remember the name of it because I haven’t read that far yet, but Professor Gutzman has told me about this.  The justices finally went: Oh, all right, this thing is getting too big.  You’ll have to appoint somebody to do your job.  We’re out of scale.  There, you happy?  Then that’s what they did.  Now back to How the West Was Lost:

[reading]

The Equal Footing Doctrine precludes Congress from granting power to the president of the United States to effectively take away or place restriction upon land that became the property of the individual state upon the state’s admission to the Union. Upon statehood, that became the area of responsibility of the state and not the federal government.

[end reading]

Mike:  This is what Cliven Bundy is arguing.  This is what I was partially arguing yesterday.  Cliven Bundy, the rancher out in Nevada who’s having this standoff with these federales and these federal agents out there demanding that he vacate the land because a federal judge says he has to, because Harry Reid claims he owns the land.

[reading]

The odd thing about the Forest Reserve Act that granted this extraordinary power to the president, is that it was never challenged. It was complained about bitterly by the different states, but never challenged by the states themselves. It was challenged in the case of Light v. U.S., but the court ducked the issue altogether.

In a strict constitutional sense, this act is contrary to the Constitution and should be unenforceable or several reasons: First, it is a violation of the “Equal Footing Doctrine.” Why? Because it deprives a state of “being equal in all respects whatever” with the original thirteen nation-states with respect to the land within its borders. Each nation-state had sovereignty of its vacant or unappropriated land. Second, it is a violation of the 10^th Amendment. Why? Because it takes away from the state a right and power over its own land in a way that is not provided for in the Constitution.

Third, it violates Article IX of the Articles of Confederation and, as such, the Constitution. Fourth, it lays the foundation for the implementation of a 2^nd tier of law (Admiralty Law: Title 18, U.S. Code, Sec. 7), to wit:

“(3) Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building.”

Note the expansion from the meaning contained in Art. I, Sec 8, Cl. 17 of the U.S. Constitution, which is quoted again for ready comparison:

“To exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten square miles) as may, by cession of particular states and the acceptance of Congress, become the seat of 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.”

Note that there is no mention of the words “concurrent jurisdiction” in the Constitution. That was fabricated out of whole cloth later to serve a different purpose for Federal Admiralty Law, a derivative power extended to the Federal judicial system by Congress.

[end reading]

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Mike:  In other words, they made it up, they invented it.  You can find the enumerated power over Washington, DC, where young Eric is currently seated today, and then you can also find that power, as I have said.  Is what is in Nevada or any of these other places a needful building, fort, magazine, arsenal or dockyard?

The answer to the question is no.  Okay, well, then why are they owning territory inside of all these states?  Good question.  The author here has endeavored to answer this, William C. Hayward, in How the West Was Lost.

[reading]

The expansion of Admiralty law into a state after statehood is a violation of the intent and letter of the constitution.

[end reading]

Mike:  Folks, this is exactly what I told you, precisely what I told you and have been telling you since last Thursday.  Why do we have the Territory Clause, Article IV, Section 3 in the Constitution?  They knew there was a vast continent out west, so they put the clause in there so the union could expand, that’s why.  Not to become land barons, not to manage stupid spotted owls, snakes, and snaildarters, not to manage watersheds or any of the other preposterous things that are now being suggested that Congress and Congress alone can do.  That’s not why the clause was in there.

End Mike Church Show Transcript