Does the Constitution Grant the Federal Government the Power to Legislate over Land within the Several States? By Robert Greenslade - Price of Liberty
Does the Constitution Grant the Federal Government the Power to Legislate over Land within the Several States?
By Robert Greenslade © Nitwit Press

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February 06, 2006

If the federal government had been granted general legislative authority, as many believe, then that government would have exclusive jurisdiction over all persons and things throughout the United States. That would include all land within the several States. The American people might be surprised to learn that the Constitution bars the federal government from exercising legislative jurisdiction over any land, within the several States, unless it first obtains permission from the legislature of that State. This little known fact is simply another component of the federal system of government established by the Constitution.

In order to understand the federal government's limited power concerning land within the several States, it is first necessary to review the proceedings in the Federal [Constitutional] Convention of 1787. On September 5, it was proposed that Congress should have the power:

"To exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may, by cession of particular states and the acceptance of the legislature, become the seat of government of the United States; and to exercise the authority over all places purchased for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings."

The primary purpose of this clause was to establish a seat of government and transfer legislative jurisdiction over this land from the States [Maryland and Virginia] to the federal government. Since all the land within the United States belonged to the individual States, or their citizens, and the States had exclusive jurisdiction over all land within their borders, a constitutional provision was needed before it could be ceded to the federal government. This provision would also allow the federal government to purchase land, within the States, "for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings." In addition, this clause would grant the federal government "exclusive jurisdiction" over any land acquired for these five (5) federal functions.

When this provision was under consideration, a member of the Constitutional Convention asserted "that this power might be made use of to enslave any particular state by buying up its territory, and that the strongholds proposed would be a means of awing the state into an undue obedience to the general government." In response, a motion was made to "insert, after the word 'purchased,' the words, 'by the consent of the legislature of the state.' This change, as asserted by the delegate who proposed it, "would certainly make the power safe. This provision, with the consent provision added, became Article I, Section 8, Clause 17 of the Constitution for the United States.

In 1956, a congressional committee prepared a report entitled "Jurisdiction over Federal Areas within the States" The Report examined the consent requirement of Clause 17:

"The debates in the Constitutional Convention are also of interest in the light they cast on the purpose of the consent requirement of clause 17. There appears to be no question but that the requirement was added simply to foreclose the possibility that a State might be destroyed by the purchase by the Federal Government of all the property within that State. Could the Federal Government acquire exclusive jurisdiction over all property purchased by it within a State, without the consent of that State, the latter would have no means of preserving its integrity."

As stated above, the consent requirement was added to protect the States from the federal government. Without the consent provision, the federal government could theoretically destroy the States and supplant their authority.

The significance of the consent requirement is important for another reason. Clause 17 and the above report use the phrase "exclusive jurisdiction" in conjunction with federal land acquisitions. This term is also referred to as "exclusive legislative jurisdiction." The 1956 committee report defined this phrase as follows:

"The term 'exclusive legislative jurisdiction' as used in this report refers to the power 'to exercise exclusive legislation' granted to the Congress by article I, section 8, clause 17, of the Constitution, and to the like power which may be acquired by the United States through cession by a State, or by a reservation made by the United States in connection with the admission of a State into the Union. In the exercise of such power as to an area in a State the Federal Government theoretically displaces the State in which the area is contained of all its sovereign authority, executive and judicial as well as legislative. By State and Federal statutes and judicial decisions, however, it is accepted that a reservation by a State of only the right to serve criminal and civil process in an area, resulting from activities which occurred off the area, is not inconsistent with exclusive legislative jurisdiction.

When the federal government acquires "exclusive legislative jurisdiction" over any land within one of the United States pursuant to Clause 17, it divests the State of authority over that land. As stated above, after such a transfer, "only Congress has authority to legislate for the area." Thus, state law is ousted and replaced by federal law.

There are two other methods for the federal government to acquire legislative jurisdiction over land within a State. It should be noted that neither of these are found in the Constitution. They are judicially created methods. The first is for the States to pass a general cession statute. These statutes allow the federal government to purchase land and acquire legislative jurisdiction without seeking formal permission from the state legislature each and every time it wants to make an acquisition. Since these statutes are voluntary acts on the part of the States, they are viewed in the same light as a Clause 17 transfer because the statute satisfies the consent requirement. The second method is for the federal government to reserve jurisdiction at the time statehood is granted to a territory. This does not involve a transfer of legislative jurisdiction because the State never had jurisdiction over the land in the first place. This is how the federal government gained control over so much property in the western United States.

It should be noted that the majority of all purchases and transfers of legislative jurisdiction have been through State cession statutes, not Clause 17. This continues to be rule rather than the exception. Every State in the Union has adopted general statutes relating to the purchase of land and the acquisition of legislative jurisdiction by the federal government. These statutes, as stated above, allow the federal government to purchase property and acquire legislative jurisdiction without petitioning the legislature of the State where the land is located.

The reader will note a common thread running through all constitutional acquisitions of state land by the federal government. It requires permission or consent from a State. The federal government cannot purchase or exercise any legislative jurisdiction over land within the several States without the consent of the legislature of that State. This fact was substantiated in the 1956 congressional report:

"It scarcely needs to be said that unless there has been a transfer of jurisdiction (1) pursuant to clause 17 by a Federal acquisition of land with State consent, or (2) by cession from the State to the Federal Government, or unless the Federal Government has reserved jurisdiction upon the admission of the State, the Federal Government possesses no legislative jurisdiction over any area within a State."

Since this Report was prepared, the constitutional powers of the federal government, concerning jurisdiction over land within the several States, have remained unchanged because the Constitution has not been amended to modify the consent requirement enumerated in Clause 17.

If the federal government has to acquire legislative jurisdiction over land within a State through one of the three (3) methods referenced above, then that means the federal government did not have any jurisdiction over the land prior to the acquisition. Thus, absent a purchase and transfer of legislative authority, the federal government has absolutely no legislative jurisdiction over land within the several States.

As stated above, the Constitution does not grant Congress any general legislative authority over land within the States. The federal government must obtain permission from the individual State and acquire the property before it can enter a State and exercise legislative jurisdiction. This raises another question. If the federal government does not have any legislative authority over land within a State unless it purchases the land and acquires legislative jurisdiction, then where does it get the constitutional authority to enter a State and enforce environmental laws like the Endangered Species Act on state and private land?

The answer is: the federal government has been usurping power because Congress does not have the constitutional authority to evade or defeat the limitations enumerated in Clause 17. If the federal government is using other clauses in the Constitution like the Commerce Clause as the basis for environmental laws, and it is, this raises other constitutional issues because the federal government cannot use one provision of the Constitution to circumvent or destroy another. In other words, Congress cannot use a grant of power in one clause of the Constitution to get around a restraint or qualification of power in another clause.

Ironically, various Senate reports on the Endangered Species Act confirm the limited nature of federal jurisdiction. Senate Report (No. 93-307), which accompanied the Act when it was originally proposed stated:

"For the first time, the knowing taking of an endangered animal in violation of the law is a criminal offense where the federal government has retained management power."

In 1988, there was an amendment to the Act to afford greater protection to plants. A Senate Report (No. 100-240) again acknowledged the federal government's limited authority over land:

"Currently, anyone who captures, kills or harms a listed animal commits a violation of the Act for which substantial criminal and civil penalties may be imposed. However, it is not unlawful to pick, dig up, cut or destroy a listed plant unless the act is committed on federal land. Even on federal land, however, there is no violation unless the plant is removed from the area of Federal jurisdiction."

The retention of "management power" is a by-product of the acquisition of legislative jurisdiction. You cannot retain something that you have not first acquired. If the federal government had been granted general legislative authority throughout the United States, then its authority to enforce the Endangered Species Act would not have been confined to "federal land" or land where it has "retained management power" as stated in these reports. It would have unlimited power over all land, irrespective of where the land was located or whether a State gave its consent.

The American people should not lose sight of the fact that pursuant to Clause 17, the federal government's power to acquire land within the several States is extremely limited. It can only acquire land "for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings." Any attempt to use this provision for purposes other than those mentioned is a blatant usurpation of power because the Constitution established a federal government of limited enumerated powers.

Clause 17 shows that the federal government's constitutional authority is not as extensive as it claims. If the federal government was supreme and above the States as federal officials claim, and that government had unlimited legislative authority throughout the United States, then it would not have to seek permission from the States before it could exercise legislative jurisdiction over state land.

The federal government's lack of legislative authority over state land also explains why building codes fall under State, not federal jurisdiction. All such laws are constitutionally under the exclusive control of the States because the federal government was never granted the general power to penetrate the borders of a state and exercise legislative authority over its land.

Robert Greenslade focuses his writing on issues surrounding the federal government and the Constitution. He believes politicians at the federal level, through ignorance or design, are systematically dismantling the Constitution in an effort to expand their power and consolidate control over the American people. He has dedicated himself to resurrecting the true intent of the Constitution in the hope that the information will contribute, in some small way, to restoring the system of limited government established by the Constitution.

If you are interested in finding out more about the Constitution, take a look at this book. I use it in many of my articles and it is the best book I've found on this subject. Bob

The Federal Government: Its True Nature and Character: Being a Review of Judge Story's Commentaries on the Constitution of the United States.

Reprint of the 1868 edition. ''Perhaps the ablest analysis of the nature and character of the federal government that has ever been published. It has remained unanswered.'' This review of Judge Story's Commentaries on the Constitution of the United States is perhaps the ablest analysis of the nature and character of the Federal Government that has ever been published. It has remained unanswered. Indeed, we are not aware that any attempt has been made to challenge the soundness of its reasoning. The great vise of Judge Story and the Federalists consisted in desiring the clothe the federal government with almost monarchical power, whereas the States had carefully and resolutely reserved the great mass of political power for themselves. The powers which they delegated to the federal government were few, and were general in their character. Those which they reserved embraced their original and inalienable sovereignty, which no state imagined it was surrendering when it adopted the consitution. Mr Madison dwelt with great force upon the fact that ''a delegated is not a surrendered power.'' The states surrendered no powers to the federal government -- they only delegated them. 160 pages.

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