By Ed Quillen
Perhaps no document except the Bible gets parsed and analyzed as much as the U.S. Constitution. There are those who take the Bible literally and those who see it as mostly metaphor, and there are those who want to apply “strict construction” to the federal constitution, and those who are comfortable with a looser interpretation.
The basic argument on “strict construction” is that the federal government is a government of limited powers, and unless those powers are specified in the federal constitution, then the Tenth Amendment applies: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
People who cite this are often called “Tenthers,” and they have an honorable political pedigree, going back at least to Thomas Jefferson, who was vice-president in 1798 and a bitter political foe of President John Adams. (In those days, the runner-up for president became vice-president. which almost guaranteed they would be political adversaries).
Acting anonymously, Jefferson got the Kentucky legislature to pass a series of resolutions he wrote which argued, among other things, that the federal government had no power to limit immigration, since that was not among its enumerated powers. Or, as Jefferson put it in more florid prose:
“That alien friends are under the jurisdiction and protection of the laws of the State wherein they are: that no power over them has been delegated to the United States, nor prohibited to the individual States, distinct from their power over citizens. And it being true as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” the act of the Congress of the United States, passed on the – day of July, 1798, instituted ‘An Act concerning aliens,’ which assumes powers over alien friends, not delegated by the Constitution, is not law, but is altogether void, and of no force.”
One problem with such strict construction is that even Jefferson didn’t really believe in it when push came to shove. After negotiating the Louisiana Purchase of 1803, Jefferson gave serious thought to pushing a constitutional amendment because there as no specific authority for the federal government to acquire territory for the United States.
But there was a good deal on the table – 530 million acres for $15 million – and there was an excellent chance that if the United States paused to amend its constitution, Napoleon might change his mind and the deal would fall through. So Jefferson didn’t seek the amendment.
And one might argue that since the purchase was made by treaty, and Article VI of the Constitution provides that “this Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” Thus the Louisiana Purchase did fit under the Constitution.
To move to more modern times, is the U.S. Air Force constitutional? Article I, Section 8, gives Congress the power “To raise and support Armies,” and “To provide and maintain a Navy.” There’s not a word about an Air Force, not surprising since it was written in 1787. That was only five years after the first human flight, a hot-air balloon in Paris (Jefferson, along with John and Abigail Adams, witnessed one of the early flights). The Founding Fathers would have needed to be quite prescient to imagine any military use for the balloon (they were used for observation during the Civil War), and to empower Congress to raise and support air forces.
Anyway, there’s no specific constitutional authority for the U.S. Air Force. You might sneak it in under Section 8: “The Congress shall have power To … provide for the common Defense.” But Section 8, also grants power to provide for “the general Welfare,” and wouldn’t that cover single-payer health care, anathema to the Tenthers?
In other words, we see a lot of selective reading and interpretation of the Constitution, trying to adapt a document written 224 years ago to a very different time.
And now, to a rural Colorado angle on constitutional interpretation. Down in Montezuma County, which forms Colorado’s southwest corner, Sheriff Dennis Spruell says he might arrest Forest Service and BLM rangers who close roads as part of a new travel management plan, and the sheriff might go out and cut any federal locks on gates.
“When I ran for office,” Spruell told The Denver Post, “the No. 1 question I was asked was what are you going to do about the encroachment of the federal government? The people here have just had enough. They are really tired of the federal government telling them what to do,” he said.
We’re talking about land that was taken from Mexico by a federal army, and then taken from the Utes by federal negotiators, and made available for homesteading and the like by federal surveyors, and perhaps irrigated by federal water projects to serve farms that might get federal crop subsidies. In other words, the federal government is part of the picture, not an encroacher, and has been since the Treaty of Guadalupe Hidalgo was signed in 1848.
But there’s another argument you get from the “We have a Constitutional right to rip up public lands with our ATVs” crowd. It’s that the federal government can own land only for purposes specified in the Constitution, which aren’t many. It can “establish Post Offices and Post Roads,” and with the consent of a state’s legislature, purchase land “for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.”
Maybe a federal courthouse would be a “needful Building,” but there’s not a word about the forest reserves that became our national forests, or federal wildlife refuges, or national parks and monuments, or BLM land that used to be public domain, or much of anything else besides postal and military purposes.
So, the argument goes, the federal government has no constitutional authority to own millions of acres in the West, and if it has no right to own the land, it certainly has no right to make rules for that land.
However, the people who make that argument seem to have missed the Constitutional provision that “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.”
That clearly contemplates that the federal government will own territory, and that Congress can make regulations for it. So it appears that the Forest Service is constitutional – maybe more constitutional than the U.S. Air Force.
I confess, I like living in the middle of public land, and I really like the parts that have those awful travel restrictions that, in theory, keep people from driving their noisy motorcycles and ATVs around where I’m walking my dog Bodie, the car-chasing idiot.
In March, we were walking in Castle Gardens when the whine of two motorcycles disturbed our day. That area has been closed to vehicles – even bicycles – for more than two years. The riders were two teen-aged boys, who paused above us and cut their engines, giving me a chance to yell “Don’t you morons know it’s illegal to drive up here?” They looked like punks I figured we could take if it came to that, but fortunately they took off.
About a week later, I noticed vehicular intrusions into another favorite route, along the river downstream from the stockyards. The old wagon road had been closed to vehicles, and some scofflaws had knocked down the sign post and moved the rocks so they could drive half a mile down a dead-end road. Just why they needed to drive there is beyond me; I’m a desk-bound (former) chain-smoker, and I can reach the end of that road by foot in 20 minutes.
Much as I had hoped a CSI team would be there examining tire tracks and looking for witnesses, there isn’t much in the way of enforcement of these laws. The local BLM ranger said the miscreants have to be caught in the act, which is unlikely given the federal budget cutbacks that reduce enforcement personnel, and when I called the sheriff’s department, the deputy said that such road closures were a federal matter and the Chaffee County Sheriff’s Office didn’t enforce federal laws.
Regarding county sheriffs, it should be noted that many Tenthers believe that our elected sheriffs are the highest law-enforcement authority in the United States – even though there’s not a word about them in the federal constitution.
The “we don’t enforce federal rules” position seemed reasonable, but I got an e-mail from a fellow who said there was a state law that allowed Colorado sheriffs to enforce such road closures, and I followed that up with a call to Chaffee Sheriff Pete Palmer, elected last year. He said he’d heard from the same fellow and had checked. His office can enforce those closures, and he had so advised his deputies, but cautioned that “nobody these days has the money to do much of that kind of enforcement.”
And of course, he discouraged vigilante action, tempting as it might be to roll a rock down on some punk on a loud motor bike.
Anyway, the upshot of all this is that even if you’re a Tenther who believes that the federal government has no authority to close vehicular routes and that the county sheriff is the highest law-enforcement officer sanctioned by our system – the sheriff or his deputies can arrest you for driving where you shouldn’t.
That’s unlikely, of course, in this era of diminished public budgets. But it’s still a comfort to see that there’s no constitutional right to tear up our countryside.
Ed Quillen, who helped found this magazine in 1994, is under medical orders to get his constitutional every day by walking his dog Bodie.
