Interesting memo on the Bundy case(s)

The Bundys might beat the rap yet. Way too much federal land out west. A lot of it needs to be given to the states or even counties.

The feds unconstitutionally own land for land sake. The Constitution says the feds can PURCHASE land for needful buildings. There is no other constitutional way for the feds to own land within state borders. The lie about eminent domain is just that. The feds were NOT granted eminent domain. IF the feds had eminent domain then the States would not have bothered to put in the purchase requirement. But then the States were much too jealous to allow the newly formed government to do things within State borders. Without a grant there is no power regardless of the lies the courts and the Congress and every other government entity makes.

Top that off with the lack of Constitutionally granted police power, the Congress cannot make punishment laws about these lands unless the punishment is for one of the 6 granted punishment powers: punishing counterfeiting, punishing piracy on the high seas, punishing felonies on the high seas, punishing offenses against the law of nations, punishing treason, punishing copyright/patent violations, and punishing violations of the 13th. Logically the grant of one police power provides evidence that those no granted are withheld. There are no implied or inherent powers in the federal government.

So, the LEOs were unprofessional. However, they were also right.
The Bundy’s are not heroes. They are cheats and con artists who want to be able to use public land as their own without paying for it. Their legal – and religious – theories are self-serving nonsense. Their armed confrontations with the government were not only dangerous to them and law enforcement, but to everyone who believes in the Right to Keep and Bear Arms and the Second Amendment.
If there was any justice under the law in this land, the vast majority of the lands would be returned to the Native American tribes and nations from whom it was in one way or another stolen. The next time you walk out on what you think is your private land, think about in that context. If you support property rights, theirs were precedent to yours. Why not support theirs. At least federal lands are generally open to all of us, whether we can claim membership among Native Americans or not.

Whatsa matta, harp1034, afraid somebody on this web site is gonna know your name? Why not stand up like a man?
Sorry, you're wrong. And not just a little. By every measure -- human usage, productivity, conservation needs, and the rights of hunters and anglers -- federal and almost all public lands are overused. In Iowa, with the least public land of all states, road ditches are significant wildlife habitat upon which the pheasant population lives or dies. If you don't know a farmer, your best chance is (illegal) road hunting. I hunted only twice on the wildlife commission land around the Coralville Reservoir -- one opening day duck season and one opening day pheasant season. I was ridiculous -- hunters outnumbered game birds, and I mean that literally.
Without public land I would never have been able to become a hunter and angler. Hunting and fishing rights depend on the availability of a large amount of healthy and productive habitat available for public use either freely or with nominal fees.
Without federal wildlife refuges, give ducks and geese and waterfowl hunting all kisses goodby. Bid elk, wild bison, and prairie chickens a fond adieu if much is taken away of their habitat.
Guess what! Hunter numbers are in a nose-dive, that's what. Guess why! No place to hunt. Guess what else: no hunters = no NRA = no Second Amendment.
The argument of returning federal land to the states is just a smokescreen for hoping the states will be unable to financially manage the land (almost guaranteed), so it can be cheaply leased or purchased for economic exploitation, or just plain used illegally because there’s no one to prevent it. Cities and counties regularly refuse to buy land for recreation because that takes the land off the property tax rolls.

A little shy are we, FWB? Unwilling to take personal responsibility for your baseless rant?
-- “The feds unconstitutionally own land for land sake.” False, on both counts. First, show me where the feds cannot own land just to have it. Next:: the truth of the matter is that most of that land the feds have because nobody else wanted it [other than Indians that is], or those who did simply stripped it of resources and then abandoned it. Nothing prevents the government from having land simply for the public benefit or in order to manage natural resources. Besides, most people are not going to side with you in exploiting public resources for private gain.
-- Either you do not understand eminent domain or you have just concocted a red herring argument out of important-sounding legal words.
-- “ . . . the Congress cannot make punishment laws about these lands unless the punishment is for one of the 6 granted punishment powers . . .” Nonsense. And you’re confusing things. Punishment powers? Where did you find that Constitutional principle? So, when your family, on visiting Yellowstone NP, is slaughtered by Neo-Nazis, who you gonna call: the United Nations? [Neither county nor state have jurisdiction,] Concocting legal principles from the desire to get the results you want is just sophistry, and the informal fallacy of the special case. So, you gonna let Trump be the first POTUS since Buchanan to not have Secret Service protection? Or can they shoot the assassin out of self-defense, but can’t arrest him?
-- “There are no implied or inherent powers in the federal government.” Did you forget the legislative, executive and judicial powers, which may be specifically limited but are not expressly enumerated? Silly boy, everybody in the world knows what legislatures, the executives, and judiciaries do; it is not, indeed cannot, be enumerated in detail.
Thus, you propose erasing all the common law the U.S. inherited from Great Britain, thus most of the law of the United States and all its sub-jurisdictions – and BTW, that includes the Right to Keep and Bear Arms. If there is no Natural Law or Common Law concept of that right, the Second Amendment is gibberish, jargon, meaningless gobbledegook. Ditto almost all of our law and order and liberty.
Sorry, people who like the Bundys make these kinds of claims are just working a con. There’s no truth to any of it.

Sir Dickens,

Personal attacks are a sign of weakness. Don't like how we post, bug off.

There is simply too much ignorance in your posts. First no one is saying that the land cannot be public. The point is that the land in question is STATE land to be used under state laws.

Try reading the Antifederalist papers and the Federalist papers. Then read Eliott's Debates. Then Story's Commentaries and Rawle's View and Cooley on the Constitution, and so on.

1) There can be no Yellowstone NP since no power to make NP or NM or NF exists. The power to own lands is restricted in the Constitution in Article I Section 8 to land for NEEDFUL BUILDINGS. So if I was attacked in Yellowstone, the state and local authorities WHO HAVE POLICE POWER would handle things there.

2) In DC, Congress has exclusive legislative power in all cases whatsoever BUT outside DC, the States retained ALL POLICE POWERS NOT GRANTED.

3) There are NO unenumerated powers. That is a lie perpetrated on the people by those in power. Never were.

4) In order for the feds to own land for the sake of land, they have to be GRANTED THAT POWER. The feds can hold territory but their sole authority is to dispose of that territory and to make needful RULES AND REGULATIONS, not laws - no grant. Is the land being held within state borders still territory? - possibly.

4) There is NO NATION known as the United States. The Framers ACTIVELY REMOVED ALL references to the US as a nation and the government as national in 1787. See Eliott's Debates for notes on the 1787 Convention. All references to the United States in the Constitution are as a plural as in "them" or "their", even the 13th amendment as in "their jurisdiction". Brain-washed ignorants believe the US is a singular nation.

5) Please point to the clause that grants eminent domain power to the federal government. There is a clause that allows Congress to purchase land with the permission of the legislature of the state wherein the land lies for needful buildings - Article I Section 8. The States would never have ratified the Constitution and there would be no US if the feds had been allowed to just take land within state borders thus the requirement to purchase was inserted.

You might want to study Tucker's Blackstone. In the US we threw out English common law and made our own. Tucker covers it nicely but since there are 5 long volumes to read, I won't expect you to get back here quickly.

In the US, only the claims of the ignorant are that the Constitution is living and can be reinterpreted as needed, that there are unenumerated powers.

Spouting off as though you grasp natural law when you confuse it with common law. Common law is the law created by JUDGES through their decisions.

Natural Law: God grants Life to each of us and each of us is under duty to protect our life from threat. Thus is born the Right to such means as are necessary to protect our life, part of natural law. For a great lesson on natural law, read John Randolph Tucker's Development of the Constitution. The Right ENUMERATED by the 2nd derives from God's endowments. As such, even if the 2nd were not in the Constitution, we would retain that right. See US v Cruikshank (1875) wherein the supreme court stated that same. Hamilton in Federalist 84 covered the point when he discussed that the federal government had no authority to legislate in any of the areas covered by a Bill of Rights, stating to all those considering ratification of the Constitution these points. If Hamilton lied, then the entire ratification process was fraudulent.

Your point about not being able to list all things governmental branches can do proves your lack of knowledge about the system in the US. Your points apply to OTHER governments that the Framers knew and worked to avoid. In our system ALL SOVEREIGNTY LIES WITH THE INDIVIDUAL and then parts of that sovereignty are loaned to the various governments. Under the Constitution, everything that the feds CAN LEGITIMATELY do is enumerated. All other powers, the unlimited ones, were retained by the States, granted by the people of each state to their state, which are by the way the entities that created the federal government and are superior to the federal government in all areas not delegated to the feds. The powers of the federal government are few and enumerated while the powers of the states are unlimited as stated in the Federalist Papers, those writings which were instrumental in convincing the State conventions to ratify the Constitution.

The States retained authority over things that were internal to states. Over the next 200+ years the federal government has stolen power that rightfully belongs in the government of each state with the help of people like you who simply cannot grasp the Constitution and the form of government that was created by a bunch of white men.

MR FWB,

The only thing close to personal was my criticism of your choice of identification. If you want to take that personally, so be it. The rest was about your ideas and arguments, most of which are blatantly false and some of which are delusional. Nobody, absolutely nobody is going to believe you when you claim there is no Yellowstone National Park. I have been there myself. So have millions of other Americans. In the light of that, how would you characterize your assertion about the park?

Since this is the David Hardy's site, I think you also lack authority to tell me to blow off it, and I doubt that the internet would lend you general authority, either.

In the meantime, I know your assertions are baseless and for the most part completely counter -- that means opposite -- to the Constitution, and your threats are not going stop me from making sure that others know that, as best I can express so in the short space the web sites allow.

FWB, sir:

Item by item rebuttal.

Item 1) You do not have the power to get rid of the park much less federal land. If there were no Yellowstone N.P. it would still be federal land, and thus federal jurisdiction. A.1 S.8 is not a limit on federal lands or purchases, but applies only to Congress and the militia and nothing else but the militia. [Honest, folks, its right there in black and white.]

U.S. Constitution, Article IV Section 3, 2nd paragraph: "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States . . . ."

There it is, in black and white, the power to make all rules regarding federal territory and property. The Constitution forbids itself from being used for the very purpose you attempt to use it.

Item 2) Apparent;y, misrepresentation again of what Article 1 says. Article IV Section 3 above shows not only can the U.S. own territory and property and make claims for such, but that Congress makes the rules for such property. It does not exempt any kind of police power.

Item 3) "no unenumerated powers." Wherever this comes from, its pure invention. The phrase is a meaningless self-contradiction; it is also a fallacious attempt to argue from a tautology.
a)There are no unenumerated rights in the Bill of Rights.
b) There is no unenumerated right to have an assault weapon.
c) There is no unenumerated property right to raise cattle on land that will be damaged by livestock.
d) There is no unenumerated right to pollute.
e) There are no unenumerated words in the unabridged dictionary.
f) There are no unenumerated revelations in the Bible.
All of these are equally as meaningless and irrelevant as the "no unenumerated powers" claim. A general grant of power must include all other powers necessary (and usually "proper") to exercise the main power; and implied powers; and inherent powers, etc.. etc., not all of which must be or indeed can be enumerated. So, these are "unenumerated" powers.

Item, the 1st 4)"Land for land sake" and "land for the sake of land" are inventions. So far as I can find, there simply are no such provisions in the Constitution as this item claims, none whatsoever, no matter how phrased. It would be a meaningless provision if it existed.

Item, 2nd 4) Right below the title of the Constitution of the United States is the Preamble, which begins, "We the People of the United States . . . " Then there is Article IV Section 3, 2nd paragraph quoted above which says "United States" twice, and referring to that entity as being able to own territory and property and make the rules and regulations for such. The 18th Century English usage of plural tense is correct for that time; the semantic argument about it is irrelevant.

5) As you wish! Article V, United States Constitution ends with provision: "nor shall private property be taken for public use, without just compensation."
There it is, black and white, eminent domain can be exercised as long as its for public use with just compensation, a broad enough power to let the Federal government obtain private land for whatever they wish to argue is a public use, including land for land's sake. Or any other use Congress or the executive may, with Supreme Court connivance, deem to be a public use. [No, I hate such shenanigans, but that is the Law of the Land.]

"Throwing out English Common Law" is something that has yet to happen. The author of the annotated American edition of Blackstone was St. George Tucker. The characterization of my comments on Natural Law and Common Law do not represent my opinions, and people who read these will know it. Otherwise, I'm running late and will have to leave these further FWB comments for when I have more time, more research, and another commentary, it I choose to bother. I think my point has been made well enough.

Sir, you certainly do not have to pay any attention to my personal comments, but the only person you are convincing is yourself. This is not a rhetorical game, sir, and what you have to lose is a lot more than you seem to realize. None of this kind of invention or argument is going to get you anywhere. You may think of your responses are "one-upsmanship," but please consider what you have to lose, and your family and those around you. Exactly what good are you doing them and yourself?

The Federalist No. 84

Assertion: “Hamilton in Federalist 84 covered the point when he discussed that the federal government had no authority to legislate in any of the areas covered by a Bill of Rights, stating to all those considering ratification of the Constitution these points. If Hamilton lied, then the entire ratification process was fraudulent.”

Response: In The Federalist No. 84, Alexander Hamilton argued against the inclusion of a bill of rights in the Constitution. He proposed that three problems might be created by this, although his writing is rather convoluted and unspecific in regard to what these were. For example, his opinion was essentially summarized in paragraph ten (by my count):

“I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such provision would confer a regulating power; but it is evident that it would furnish, to men disposed, to usurp, a plausible pretense for claiming that power.”1

Now, I think most of these “concerns” can be dismissed as trivial. The relevant thing to note is that the apparent third problem that Hamilton had was the bill of rights could be used to expand rights under the Constitution. This is probably the most honest of Hamilton’s worries. He is in fact not arguing for unlimited civil liberties protected by strictly limited government powers; almost the opposite in fact. So some historians believe that Hamilton was indeed disingenuous. He wanted restricted liberties and expansive powers [if not, secretly, nearly unlimited powers] for the new federal government. It also seems clear at least to me that these completely inconsistent fears – that the bill of rights would somehow expand government powers, expand individual liberties, and constrict liberties, have a air of artificiality to them. [Some think the Federalists were generally not quite forthright in the estimation of the powers granted the new government; my impression is that John Adams was the main Federalist proponent of strictly limited government powers and unlimited rights for individual.]

Thus, Hamilton is not a supporter of strictly limited and only enumerated government powers, nor of infinite freedoms; just the opposite. The Assertion at the top of the page is an interpretation of what Hamilton argued (although admittedly it’s hard to make sense of this Federalist if one does not try to interpret it), but Hamilton is not arguing the same thing being argued by the author of that assertion – and he does not literally guarantee that any specific right will be protected – and considering the body of his argument, I think it’s safe to say he carefully skirted that issue without making any definite guarantees. In making his argument about the specific freedom, as in the above quote from No. 84, he frames his argument in an interrogatory, and not a specific assertion of a guarantee of the right.

Hamilton is not, I would suggest, the ultimate or even a reasonable authority on the Constitution and what it “says” or “means,” and particularly not in this case. Hamilton’s “discussion” was filled with claims, assertions, speculations, hypotheticals, and theories, all rhetorical, what I would call weasel words, none of which had to be accepted in order to accept the Constitution. I suspect the public and the state legislatures interpreted Hamilton correctly. Neither the public nor the state legislatures, who ratified the Constitution, agreed with Hamilton or the Federalists on this issue. The Constitution was adopted only upon the understanding that it would be immediately amended by the Bill of Rights, exactly what Hamilton and most Federalists did not want. Thus, there appears to have been no great fear factor in Hamilton’s three bugaboos. On the contrary, it is reasonable to believe that the fear that, without the Bill of Rights, the Constitution had indeed conferred far too many and far too broad and far to general powers upon the government was the one that most people seemed to see and feel. The adoption of the Bill of Rights was contrary to Hamilton’s argument in number 84, but also to the idea that the language in the body of the Constitution was sufficient limitation on the government to protect individual freedoms, most particularly those specified in the Bill of Rights. Indeed, my impression is that it would be a hard sell to discover in the body of the Constitution exactly where there were specific or general limits on Congress that protected the freedoms of religion, the freedom of speech, the freedom of the press, the right to keep and bear arms, protection against self-incrimination, protection against unreasonable searches and seizures, etc., etc. But, I could be wrong. Discover them if you can.

The fear that the Constitution had inadequate protections of liberty turned out to be entirely justified. The 5th Congress, dominated by the all-too-ingenuous Federalists, in 1798 passed the Alien and Sedition Acts [four separate laws, actually, doing a variety of things]. Almost incredibly, the Federalist protector of unlimited individual liberty, President John Adams, signed the bills. Among other things, it authorized imprisoning and deporting “dangerous” aliens, and it criminalized allegedly “false” statements critical of the federal government. For emphasis, this law, enacted by Federalists, restricted free speech and freedom of the press when the government did not like what was said. It did exactly what Hamilton in Federalist No. 84 said it could not possibly do – it restricted freedom of speech as well as freedom of the press. [The acts were not appealed to the courts – Marbury v. Madison had not been adjudicated.] When Jefferson and the Democratic-Republicans came to power, the laws were repealed and attempts were made to right the wrongs done to victims whose rights were violated by the Federalists. The Federalist party became out of favor due to this scandal and the military suppression of the so-called Whiskey Rebellion, where Alexander Hamilton turns up again on the wrong sides of protected civil liberties, freedom, and government over-reaching. By 1816 the party was all but gone due to those shenanigans.

Note: The only thing that matters now about Hamilton’s convoluted and suspicious arguments was that most people apparently saw through them; the ratification process was specified in the Constitution itself, and no matter who lied about what, the requirements for ratification were met.

1. There are at least a few web sites that post the Federalist Papers. This is from the Constitution Society. No. 84 is not that long, but it is not an easy and pleasant read.