The rise of the Sagebrush Sheriffs

How rural ‘constitutional’ peace officers are joining the war against the feds.

On the morning of May 10, 2014, San Juan County Sheriff Rick Eldredge waited on horseback in the sagebrush of Recapture Canyon in southeastern Utah. In his faded jeans, boots and white cowboy hat, he looked as if he were out for a casual ride in the cool spring air. But what appeared to be a bulletproof vest underneath his shirt and the 30-odd deputies scattered amid the canyon’s scrub oak and sandstone hinted at a different story.

 

Eldredge and his deputies were braced for a mass act of motorized civil disobedience. Frustrated by “unconscionable acts by the Bureau of Land Management,” including the 2007 closure to motorized vehicles of the trail down Recapture Canyon, San Juan County Commissioner Phil Lyman and 40 to 50 followers were driving their ATVs toward the closed section of the canyon. They were there to defy federal regulations to protest what they consider the BLM’s heavy-handed management of the public lands that comprise so much of their county.

In promoting the ride, Lyman, soft-spoken with a boyish face and salt-and-pepper hair, invoked one of America’s favorite civil disobeyers, Henry David Thoreau. Thoreau, however, seemed an unlikely role model: Several of the protesters carried firearms, including a clean-cut guy with a “Regulator” neck tattoo and a semi-automatic Glock on his hip. A young man wearing an “American Venom” T-shirt had an assault rifle in one hand, his finger never leaving the trigger, while he piloted his four-wheeler with the other. Others carried signs: “Tranfer (sic) Federal Lands to Western States” and “Stop BLM Agenda 21 Road Closings.” Ryan Bundy, the son of scofflaw rancher Cliven Bundy, rode a four-wheeler down the canyon, as did a handful of self-professed militiamen who, just weeks earlier, had supported Bundy in his heavily armed standoff with BLM agents in Clark County, Nevada.

As the roar of the ATVs echoed up the canyon, Eldredge and his men stood ready. With a herd of determined lawbreakers heading toward them, another standoff seemed imminent. But as the caravan of protesters rode past the closure line, kicking up a billow of exhaust and red dust, the deputies did nothing, and Eldredge merely nodded a stoic greeting from atop his steed. That’s because he wasn’t actually there to police the protest, but to “keep the peace.” For the protesters, at least, that meant he was there to protect them from the plainclothes BLM officers roaming the canyon and collecting evidence — officers that Eldredge kicked out of the canyon before the ride was finished.

“There’s a big difference (between the Bundys and me),” Lyman told reporters prior to the ride. “I’ve got a sheriff standing next to me.”

 

Colorado sheriffs flank Weld County, Colorado, Sheriff John Cooke in 2013 as he announces that 54 Colorado sheriffs had filed a federal lawsuit challenging two gun control bills passed by the Colorado Legislature.
Brennan Linsley/AP

The Recapture ride was just another skirmish in the Sagebrush Rebellion, an anti-federal land-management movement with roots here in San Juan County. The first uprising, led in part by then-County Commissioner Calvin Black in the 1970s, was a reaction to what some saw as the federal occupation of the West by way of new environmental laws that impacted federal lands. It was also part of a region-wide effort to transfer federal lands in the West to the states.

The second iteration unfolded in the mid-1990s, provoked by former President Bill Clinton’s conservationist approach to federal land. While that rebellion became violent and coincided with a nationwide surge in anti-federal extremism, the land-use folks rarely crossed paths with the so-called “Patriot” groups. Today, though, the barriers are down. Now, a single event like Recapture, the 2014 Bundy Ranch standoff or the Malheur National Wildlife Refuge occupation, broadcast globally and instantly via social media, draws supporters from across the extreme right, from other Sagebrush Rebels to pro-gun militiamen to local politicians who have no qualms about standing cheek-by-jowl with people aiming rifles at federal agents.

Among those officials are a growing cadre of county sheriffs, many of them from the rural West, who believe themselves above the reach of federal government, constitutionally empowered as the supreme law of the land. Some have chosen to become part of this movement, while others have joined unwittingly, by taking strong political stances or acting on the behalf of local anti-government movements. Eldredge, who refused to be interviewed for this story, openly allied himself with Lyman and company. These self-proclaimed “constitutional sheriffs” use their assumed position as the ultimate law enforcement authority to fight environmental regulation, run federal officials out of their counties, and, in some cases, break the law themselves.

Richard Mack as Graham County, Arizona, sheriff in 1994, sued the federal government over the background check provision of the Brady Act. Today, Mack (shown here at a 2010 anti-gun control rally in Washington, D.C.) pushes for local control and tries to get candidates with “constitutional” leanings elected.
Jim West/Alamy

The constitutional sheriffs’ seminal moment was in 1994, when Richard Mack, then-sheriff of Graham County, Arizona, and a handful of other sheriffs sued the federal government over a provision in the 1993 Brady Act that required local law enforcement to handle background checks on gun sales. In 1997, the Supreme Court ruled 5-4 for the sheriffs, deeming it unconstitutional for the feds to force the state or its officers to execute the regulation.

Mack’s defiance made him a folk hero to the then-burgeoning Patriot movement, which is centered around the belief that the federal government is taking away individual liberties. Mack became a speaker at Patriot gatherings, railing at Clinton and his attorney general, Janet Reno. In 1996, Mack lost his bid for re-election, but he still spoke for libertarian causes, and he co-wrote a book with Randy Weaver, the man at the center of the 1992 Ruby Ridge shootout with federal agents, the event that catalyzed the militia movement.

But it was Mack’s “complete discouragement and feelings of hopelessness” at the 2008 election of Barack Obama that propelled him back into the political spotlight. In reaction, Mack wrote a 50-page screed denouncing the federal government and its intrusion into individual and state rights. The County Sheriff: America’s Last Hope, published in 2009, argues that the sheriff is the ultimate law enforcement authority and thus the “last line of defense” shielding individual liberties from out-of-control federal bureaucrats. The manifesto cemented his cause and made him one of the prime movers of the ad hoc reactionary movement that would come to be known as the Tea Party.

With his clear blue eyes, sweeping black hair and easy smile, Mack looks like central casting’s idea of the perfect sheriff. He shared his philosophy at dozens of Tea Party rallies as well as gatherings of the Oath Keepers, a quasi-militia organization founded in 2009. Had there been a true constitutional sheriff in Montgomery, Alabama, back in 1955, Mack told his audiences, that sheriff would have defied the segregation laws and protected Rosa Parks. “Today, that constitutional sheriff does the same for Rosa Parks the gun owner,” Mack says, “or Rosa Parks the rancher, or Rosa Parks the landowner, or Rosa Parks the homeschooler, or Rosa Parks the tax protester.”Help fund stories like this

By refusing to enforce federal and state laws that they deem unconstitutional, whether they involve BLM road closures, gun control, drug laws or bans against selling unpasteurized milk, Mack says sheriffs can lead the fight to rescue America from the “cesspool of corruption” that Washington, D.C., has become. If need be, he says, sheriffs even have the power to prevent federal and state agents from enforcing those laws, thereby nullifying federal authority. If a particular sheriff doesn’t rally to the cause, then the voters should kick him out of office. And Mack and his organization have been quietly fielding opposition candidates in many counties. In fact, he is one of the forces behind the Constitutional County Project, which aims, this year, to elect a whole slate of “constitutional” candidates to office in Navajo County, Arizona, in what amounts to a nonviolent coup d’état. “There is no solution in Washington, D.C.,” Mack told me. “If we’re going to take America back it’s going to be at the local level.”

Some Western sheriffs didn’t need Mack’s encouragement. Back in 2000, Eldredge’s predecessor, Mike Lacy, forcibly opened a road in Utah’s Canyonlands that the National Park Service had closed to protect cultural resources. A few years later, his Kane County counterpart, Sheriff Lamont Smith, went on a countywide escapade, removing more than two dozen BLM signs that indicated road closures and other restrictions on motorized travel. Mack’s movement gave these lone-wolf sheriffs a collective sense of empowerment and a rallying point.

By 2011, when Mack formally created the Constitutional Sheriffs and Police Officers Association, or CSPOA, his creed was already infiltrating Western sheriffs’ offices. That year, Josephine County, Oregon, Sheriff Gil Gilbertson started making headlines for defying (and allegedly harassing) federal land managers. Montezuma County, Colorado, Sheriff Dennis Spruell appeared on the right-wing radio show, The Political Cesspool, where he threatened to arrest federal officials who closed roads, citing his duty to defend his county “against enemies, foreign and domestic,” part of an oath undertaken by members of the U.S. armed services and now a favorite catchphrase of constitutional sheriffs.

Then-Montezuma County, Colorado, Sheriff Dennis Spruell, left, sits with constitutionalists Bob Sanders and Mike Gaddy in 2011. The sheriff had threatened to arrest any Forest Service workers he deemed to be breaking laws by closing certain roads. Spruell lost his bid for re-election in 2014.
Helen H. Richardson/The Denver Post via Getty Images

In October 2011, seven sheriffs from Northern California and one from southern Oregon gathered for an event in Yreka, California, called “Sheriffs Stand TALL for the Constitution.” If any of the predominantly white, older audience believed that sheriffs are, or ought to be, apolitical, objective enforcers of the law, they were quickly disabused of the notion. One sheriff after another stood up and spoke proudly about his involvement in the Tea Party and the “assault being perpetrated against our community by our own government” by way of travel management plans and dam removals. Tellingly, Karen Budd-Falen, a Wyoming-based property rights attorney who is well-known for representing Sagebrush Rebels against the federal government, was also on the panel.

“We’re challenging the status quo, and we are challenging some federal and state agencies and some special interest groups who are using money, influence, politics, regulations and lies to literally destroy rural America and our way of life,” the event’s host, Siskiyou County Sheriff Jon Lopey, said, summing up the sentiments of his colleagues. “Some of your federal and state agencies care more about fish, frogs, trees and birds than (they) do about the human race. And one more thing: We’re broke. Why don’t you let the people work?” His message was clear: Environmental regulations wreck the economy, and a bad economy leads to crime, so the interests of sheriffs everywhere are best served by fighting environmental regulations.

Four months later, in January 2012, the CSPOA held its first gathering in Las Vegas, followed by a second event that September. By then, Obama was on his way to being re-elected and Tea Partiers had triumphed in a number of Republican primaries. Mack’s attendance rosters read like a Who’s Who of Tea Party politics. They included Oath Keepers’ founder Stewart Rhodes and Sagebrush Sheriffs such as Spruell and Lopey. Also speaking was Tom DeWeese, president of the American Policy Center, known for spreading fears that the United Nations, under Agenda 21, is taking over the world via bike paths and public transit, and Joe Arpaio, the notorious sheriff of Maricopa County, Arizona, whom Mack praised for launching an investigation into the validity of Obama’s birth certificate. Ken Ivory, president of the American Lands Council and champion of the federal land-transfer movement, gave a rousing speech at the September gathering about the “revolution of ideologies” he and the sheriffs were engaged in.

The larger movement really gelled, though, after the December 2012 shooting massacre of 20 children and six adults in Newtown, Connecticut, when it seemed as if Congress might pass modest gun control measures. Hundreds of the 3,000-odd county sheriffs nationwide revolted against the specter of such regulations, vowing not to enforce any new gun laws and to prevent federal officials from doing so. The West led the charge, with a majority of the region’s 300 rural sheriffs, Republicans and Democrats alike, signing on to oppose new state or federal gun laws. Sheriffs who did not join the charge were added to a list of “red coats” on the CSPOA website, and risked the wrath of their gun-loving constituents.

Mack told me he is especially proud of the letter to Obama from 28 of Utah’s 29 county sheriffs, Eldredge included, which read, in part: “No federal official will be permitted to descend upon our constituents and take from them what the Bill of Rights — in particular Amendment II — has given them. We, like you, swore a solemn oath to protect and defend the Constitution of the United States, and we are prepared to trade our lives for the preservation of its traditional interpretation.”

 

Then-Josephine County, Oregon, Sheriff Gil Gilbertson, who questioned the federal government’s authority on federal land, lost his bid for re-election in 2014.
Bob Pennell/Mail Tribune via AP

Mack’s organization is not unique in believing in sheriff supremacy. The notion was critical to the ideology of the ultraconservative John Birch Society, founded in 1958, as well as the racist, anti-tax Posse Comitatus group of the 1970s. Now, organizations like the Oath Keepers have embraced it as well. The idea acts as a kind of glue that binds many of these libertarian and right-wing movements together; Sagebrush Rebels, Second Amendment advocates, county- and states’-rights groups and border security activists have increasingly looked to sheriffs to use their clout on their behalf.

This power, says Mack, derives mostly from the fact that the sheriff is the only elected law enforcement official, elevating him above his bureaucratic counterparts. Added to that is the 1997 Supreme Court decision on the Brady Bill’s proposed background checks. The majority opinion, written by Justice Antonin Scalia, is in Mack’s favor: “The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.” That interpretation could be used to justify Eldredge’s refusal to stop the illegal Recapture Canyon ride, as well as the sheriffs who threaten to ignore federal gun laws.

Yet the court decision does not empower those sheriffs to stop or impede federal officers from enforcing federal laws or regulations. Nor does it require federal officers to get the local sheriff’s permission before doing their jobs. Mack’s rhetoric, says Casey LaFrance, an associate professor of political science at Western Illinois University and author of Targeting Discretion, a police-training manual, is driven more by historical context than legal precedent. The Posse Comitatus Act of 1878, for example, prohibited the U.S. military from enforcing laws or invoking “posse comitatus” — that is, enlisting citizens to fight crime or repel outside invaders, a right sheriffs possessed in colonial America. According to some, this puts sheriffs at the top of the law enforcement food chain.

State legislatures, including those in Montana, Arizona and Washington, have tried to pass legislation giving sheriffs more power, usually by undercutting federal law enforcement. They’re rarely successful, but in 2013, Eldredge attended the Utah Legislature’s session to help Rep. Mike Noel, a well-known Sagebrush Rebel from Kane County, introduce a bill to limit the ability of federal officials to enforce state and local laws on public lands in the state. The “sheriff’s bill” passed, but was later repealed after the courts stopped it from taking effect.

Which isn’t to say sheriffs aren’t already extremely powerful, says LaFrance. As elected officials, sheriffs are accountable only to the voters. County commissioners have no control over them and can’t remove a sheriff, even if he or she is convicted of a crime. Though commissioners typically control the budget, they are usually prohibited from cutting off the sheriff altogether. In most states, only the governor can remove a sheriff from office, and that is only in cases of extreme malfeasance.

It’s often tough even for the voters to boot a sitting sheriff. In rural counties, among the only people qualified to replace a sheriff are the deputies, who risk losing their job by taking on their boss. “Honestly, the sheriff is rarely challenged,” says LaFrance; in fact, the average sheriff’s term is about 24 years. This apparent invulnerability makes some sheriffs feel free of the necessity of enforcing laws to which they are ideologically opposed, and that, say critics, can have dangerous consequences.

“When law enforcement refuses to enforce the laws, it sends a dangerous signal to extremists,” says Jessica Goad of the Center for Western Priorities. “It serves to embolden those who tend towards violence. This rhetoric and stance has an extremely chilling effect on the people who are doing their jobs — from park rangers to environmental activists. The thought that the sheriff doesn’t enforce the law is scary.”

It goes even further. U.S. Attorney S. Amanda Marshall chastised then-Josephine County Sheriff Gilbertson after he riled up a meeting of miners in 2012 and even promised to arrest federal law enforcement officers for “impersonating” police. “You do the miners a disservice by promoting, under color of the office of Josephine County Sheriff, a clearly erroneous interpretation of federal law,” she wrote him in a letter. “As a result, miners are becoming increasingly confrontational with federal officers. … Your continued misguided crusade will only increase the safety risks to our federal officers and members of the public.”

Rose Chilcoat, executive director of Great Old Broads for Wilderness, the longtime bête noir of Lyman and other San Juan County conservatives, says when elected officials side with lawbreakers, “it hugely undermines a civil society. It makes it that much harder for the feds to make a case. They can say: ‘Yeah, I rode my ATV on that closed trail because the sheriff said it’s OK.’ ” The feds made a strong case against Lyman, however, and ultimately succeeded in getting him convicted of two federal misdemeanors for organizing and participating in the ride. Lyman was sentenced to 10 days in jail, and he and a collaborator were ordered to pay $96,000 in restitution for damage done. (He is appealing the verdict.)

Sheriffs have used their authority to weigh in on all manner of issues. Mack was a leading figure at the Bundy Ranch standoff in 2014, excoriating the local sheriff for not running the BLM out of there, and last year, he urged constitutional sheriffs to refuse to enforce the Supreme Court’s decision to permit gay marriage. In Idaho, Bonner County Sheriff Daryl Wheeler wrote to the state’s governor, Butch Otter, exhorting him not to resettle Syrian refugees. Mack was on hand in Burns, Oregon, in early January to demonstrate in support of ranchers Dwight and Steven Hammond, who were sentenced to five years in prison for arson on federal land. Even though he is close to the Bundys, however, Mack questioned their subsequent occupation of the nearby wildlife refuge. While the local Harney County Sheriff, David Ward, has taken a strong stance against the occupation, Sheriff Glenn Palmer, from Grant County, Oregon expressed limited support for Bundy and friends, saying the federal government should give in to some of their demands. Palmer was the 2011 CSPOA Sheriff of the Year, and made his name by pushing back against federal land agency travel-management plans.

Mack says the CSPOA has about 4,500 dues-paying members, some 200 of whom are sheriffs, and he says his group has “trained” (taught their principles to) hundreds more. But the tentacles of the constitutional sheriff philosophy clearly reach far beyond the group’s membership rolls. Shortly after the Recapture ride, the conservative media outlet Breitbart Texas interviewed Eldredge, who in 2010 had run as a Democrat against then-incumbent Mike Lacy, promising to open more doors to federal agencies. Four years later, he was a Republican, running on a record of standing against federal overreach. In the interview, the sheriff blamed environmental regulations for transforming San Juan County from one of the richest counties to one of the poorest in the state, and he said he’d love to see federal land transferred to the state. When asked if he considered himself a constitutional sheriff, Eldredge replied, “I do.

“I thought every sheriff was supposed to be a constitutional sheriff,” he added. “That’s our job.

Senior editor Jonathan Thompson writes from Durango, Colorado. @jonnypeace

Coverage in this special report is supported by contributors to the High Country News Enterprise Journalism Fund.

Steve Snyder
Steve Snyder Subscriber
Feb 02, 2016 01:10 PM
This:
<blockquote>With his clear blue eyes, sweeping black hair and easy smile, Mack looks like central casting’s idea of the perfect sheriff. </blockquote>
I guess could be true if central casting is run entirely by Anglos.
Steve Snyder
Steve Snyder Subscriber
Feb 02, 2016 01:13 PM
Secondly, since sheriffs are not federally prescribed constitutional offices, and state constitutions are readily amendable, nuttery like this is why I've long argued for sheriffs, constables, etc., to be appointive officials, just like city police chiefs and state directors of public safety.
Steve Snyder
Steve Snyder Subscriber
Feb 02, 2016 01:15 PM
Third, what would put a stop to this nonsense is noting that sheriffs are violating THEIR oaths to uphold the constitution, and in the case of San Juan County, Utah, if not only the local sheriff is abetting criminality, but it's being discussed within an organized group ...

Hit 'em with the RICO hammer.
Tim Parmly
Tim Parmly Subscriber
Feb 02, 2016 02:53 PM
The "constitutional" sheriffs are similar to the religious right. They pick and choose which part of the constitution "they" think should be enforced. If nothing is done to quell this, it will just keep getting bigger and bigger. Arrest them for being seditionists and just keep messing with them until they realize they have to uphold all the laws.
Kerry OBrien
Kerry OBrien Subscriber
Feb 02, 2016 03:55 PM
So tired of little boys playing cowboys and Indians, only in full military armament. Grow up. It's 2016.
DOUG HASH
DOUG HASH
Feb 02, 2016 05:41 PM
So, for the sake of argument if we could have a talk with say.........Thomas Jefferson about ''CONSTITUTIONALITY". Here's one phrase he might utter again: "When injustice becomes law; Resistance becomes duty". The Constitution was designed, supposedly, to limit the federal gov't to enumerated powers but Progressive and Socialistic influences on appointing SCOTUS Justices has led to interpretations far beyond what our Founders could ever have nightmares about. Thus, the forced inclusion of the Bill of Rights to make sure that the "people" retained the final decision in what is right or wrong about your so worshiped Constitution. The "Union" was to be voluntary not mandatory, backed with deadly force threats and actions, vis-a-vis Honest Abe (haha)! If we are truly free then any state or group actually should be legally able to dissolve their association with the Federals and establish that type of government that better meets their needs...........Try looking up the Declaration of Independence. Is that document now defunct in it's declaring that all men are created equal? I present to you gentle reader that the "usurpations" of this day and age far surpass those of King George at his worst!
"... But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.--" I present that you Mstr's Parmly, O'Brien and Snyder have no soul for Liberty but will, as Samuel Adams said, "...lick the hand that feeds you...."
Kate Schimel
Kate Schimel Subscriber
Feb 02, 2016 05:52 PM
Hey folks, please refrain from personal insults and commenting. We ask that you focus on the content of the article and comments, rather than the person. You can read our full policy here: http://www.hcn.org/policies/comments-policy Thank you for commenting.

Best,
Kate Schimel
Assistant Editor
jim bolen
jim bolen Subscriber
Feb 02, 2016 11:38 PM
I think our supreme courts throughout the years have realized that in order for our constitution to work it must be a dynamic document in ways Jefferson could not anticipate 250 years ago. Even the Bible is subject to interpretation as who really believes the cosmos were created in 6 days just 6,000 years ago.
Doug do you really believe we are under a tyrannical government that gives you the right to decide what laws you will obey take up arms against it and moral justification to kill federal peace officers?
You have the right to peacefully change, protest and vote for who you choose and I will be doing the same.
I define my Liberty as keeping public lands public and not given away or controlled by narrow interests. Now that would be treading on my liberty
terry callahan
terry callahan
Feb 03, 2016 02:20 AM
Thank you Doug for bitch slapping the 3 colossal examples of American constitutional ignorance above. It makes me cringe whenever I see someone refer to the US CONSTITUTION as a living , breathing, or "dynamic" document...which are buzz words from the far left for "GET READY , we're about to shred your rights again". It was and is a God inspired rock solid foundation for freedom which requires no apologies or updating. And to the author of this piece, the slant you thought you were ever so slightly injecting into your carefully chosen words to tilt the story and guide the reader to the left leaning conclusions you wanted, was not nearly as subtle as you planned. America as it was created is not long for the world, and the Redcoats on the left will be the ones crying the loudest when it all comes crashing down around them due in large part to their political ignorance, and to their leftist world views. God bless these Sheriffs, and the judges who side with them for America.
King Swanson
King Swanson
Feb 03, 2016 09:40 AM
The entire article has anti right extremist slant to it . Tripe!!! Must be the opinion of the staff editorial dept etc. to moralize vilify with Nuance....GOD bless these Sheriffs and all groups mentioned. PS Sheriffs cannot choose laws to obey...Yet a President CAN????(Immigration,Coal<environment....)
Steve Snyder
Steve Snyder Subscriber
Feb 03, 2016 10:24 AM
Dear HCN — How about like/unlike buttons, or at least a like button, with "silence" indicating "unlike," as in unliking people with a selective, unconstitutional interpretation of the Constitution?
eric Hildinger
eric Hildinger
Feb 03, 2016 11:04 AM
Here's what I don't get: This is public land we are talking about. All these ranchers, miners, locals, sheriffs, we all grew up enjoying these public lands via hunting, fishing, off roading, horseback, hiking, mountain biking...etc. If the BLM, Forest Service, National Park lands are turned over to State and corporate/private interest, this land will be off limits. How is that in our best interest?
Kevin Grunewald
Kevin Grunewald Subscriber
Feb 03, 2016 07:20 PM
We can discuss the constitution. We can discuss individual and state's rights. We can discuss government agencies as to their policies and performance. We can discuss many more issues and perhaps even come to agreement and progress if all parties are willing to listen and stand in another's shoes. But I judge that most people aren't inclined to do this at the point of a gun.
Wayne L Hare
Wayne L Hare Subscriber
Feb 03, 2016 11:48 PM
Thank goodness for ‘Constitutional sheriffs’ who love and obey the Constitution. No doubt about it. Well….except for that pesky little Article VI thingie: "This Constitution, and the Laws of the United States...shall be the supreme Law of the Land…”…except for, uh, you know, article somethingorother “Constitutional sheriffs, if they are white men, and have a following of like-minded, not-very-bright, but heavily armed additional white men, are entitled to their own Law of the Land and personal interpretation of the Constitution, and are therefore entitled to uphold - or not - whatever laws they happen to feel like." I’m pretty sure that’s in the Constitution SOMEWHERE!
jim bolen
jim bolen Subscriber
Feb 04, 2016 09:07 AM
right on Wayne,
Just like somewhere in the constitution it said that slavery was a constitutional right according to the confederate states.
 and heaven forbid should we violate their private interpretation of the constitution
Christopher Jones
Christopher Jones
Feb 04, 2016 09:28 AM
Is this a People magazine piece about sexy cowboys? Barf :P This is at least the 2nd article I've read lately on HCN that really seems like the author would rather glamorize these jerks like a boy band, than to portray them for what they are, dumb thugs.
Lee Bailey
Lee Bailey
Feb 04, 2016 11:34 AM
Interesting article, though I continue to find HCN has a very decidedly leftist slant. I believe there needs to be a SCOTUS decision regarding the Constitutional authority of the Federal Government to own and administer "public lands". I don't believe the founders wanted a centralized government to retain that authority, but wanted it prescribed to the states. We have accepted it, and there are profound consequences for that.
Steve Snyder
Steve Snyder Subscriber
Feb 04, 2016 12:15 PM
Lee Bailey, you show exactly why originalism is a such a dead letter. The Founders wrote before railroads, international corporations, computers and the Internet and many other things. Believing that a fossilized, fundamentalist-viewed, King James Bible-interpreted idea of the Constitution has anything to say to 21st-century America is itself highly problematic.
Steve Snyder
Steve Snyder Subscriber
Feb 04, 2016 12:18 PM
Beyond that, even before the current Constitution, the Congress of the Articles of Confederation created the Northwest Ordinance. Congress has always had multitudinous powers to regulate lands that are in its control.
Wayne L Hare
Wayne L Hare Subscriber
Feb 04, 2016 12:20 PM
None of us know what the founders wanted. We just speculate to suit our needs. But the largest proponent of the federal government acquiring public lands was Thomas Jefferson. The Louisiana Purchase. He was a founding father. And actually the Supreme Court has ruled unequivocally on that twice, a long time ago, in the case of the Malheur Widlife Refuge. In 1902 here http://openjurist.org/185/us/47 and again in 1935 here http://openjurist.org/295/us/1. And again in 1976 in Kleppe v New Mexico the Supreme court ruled that "the complete power that Congress has over federal lands under this clause (the property clause) necessarily includes the power to regulate and protect wildlife living there, state law notwithstanding.” https://en.wikipedia.org/wiki/Kleppe_v._New_Mexico. The “profound consequence” of the federal government owning land seems to me that it is there and available for all of us to use and enjoy. Not sure there’s another country who can claim a similar model.
Steve Snyder
Steve Snyder Subscriber
Feb 04, 2016 12:23 PM
Per Wayne, Article IV, Section 3:

"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, or of any particular State."

http://www.archives.gov/[…]/constitution_transcript.html

Let's stop with the crackpot theories. Period.
Lee Bailey
Lee Bailey
Feb 04, 2016 05:31 PM
I again find it interesting the lack of civility when discussing the current issues. Why is it necessary to assign adjectives such as "crackpot" or "fossilized". Interactions do not necessitate this...healthy discourse is a citizens right. Interpretation of the Constitution and it's meanings have and will continue to be debated. I respect your opinion, and will consider your view, but I look at your comments with derision
Steve Snyder
Steve Snyder Subscriber
Feb 04, 2016 07:22 PM
Lee, I wrote an essay on this for an online philosophy magazine. I know exactly what I'm talking about:
http://theelectricagora.com/[…]/
Wayne L Hare
Wayne L Hare Subscriber
Feb 04, 2016 07:51 PM
In Mr. Snyder's defense, he only referred to a theory as being crackpot, not any person. But yeah, it would be an awesome experiment if this dialogue didn't call other commenters names, question their intelligence...just hard to listen to someone who rants, and impossible to learn.
Brandon Glimpse
Brandon Glimpse
Feb 05, 2016 08:18 PM
God bless these Sheriffs and their families , for it is for their children and Grandchildren that they stand up to the current political nutcases of liberalism. These are the Men and Women of America that are directly related to the original forefathers of this Country, now the greatest Nation on Earth, who pledged their life their liberty.
Cherilyn Eagar
Cherilyn Eagar
Feb 07, 2016 08:10 PM
Article I, Section 8, Clause 17 is clear. That's at the center of this discussion, but conveniently left out of this article. Read it.
Harvey H Reading
Harvey H Reading Subscriber
Feb 09, 2016 01:48 PM
One of the sort of idiot described in the article ran fpr sheriff in Fremont County, WY last election time. He was gonna by god stop those feds from enforcing the non-exclusive ag leases on public lands. The leases make it clear that recreational uses by the public are not excluded just because some livestock farmer has grazing privileges. Fortunately he was canned in the primary.

Fremont County, upper Wind River drainage, is the site of a fair-sized welfare ag irrigation project (dams, canals, ditches) undertaken beginning in the first half of the 20th Century, by the U.S. Bureau of Reclamation, meaning courtesy of U.S. tax dollars. To hear people tell it now, the livestock and beet farmers did it all on their own ... working "cooperatively" with the tribes on the Wind River Reservation, the people who had a good portion of their lands stolen by congress around 1905. Thing is, you can't go to a public meeting without some idiot standing up and blaming the tribes for whatever ails the county, often prefacing their remarks, with, "Not to sound racist, but ...". I've never in my life seen a bunch of people so self-entitled, full of bull, and racist in my life --which included 20+ years in the Central Valley of CA.
Robert Eaton
Robert Eaton
Feb 10, 2016 01:37 PM
"His message was clear: Environmental regulations wreck the economy, and a bad economy leads to crime, so the interests of sheriffs everywhere are best served by fighting environmental regulations." I can like many on this page how environmental regulations wreck the economy, as for instance, the Steel Industries back in the 70's collapsed and moved out of the country or overseas. It, environmentalism, is the tool used by the "one worlders" to to reduce America to a 2nd or 3rd world status, and promote the globalist mindset of the elite banking families who run the show. Washington DC, with the 535 members of Congress, the POTUS, and all the bureaucracies are just puppets.
 
Paul Lindholdt
Paul Lindholdt
Feb 10, 2016 02:55 PM
How delusional that these people should self-identify with Rosa Parks and Henry David Thoreau.
Steve Snyder
Steve Snyder Subscriber
Feb 10, 2016 03:04 PM
Cheryl, stop spreading canards. That ONLY applies to a seat of government and anybody who actually knows the constitution knows that.

Robert, untrue, beyond your conspiracy thinking. Why did the state of Utah so promote Arches National Park last summer to the point that **it had to be closed due to lack of parking/traffic space** if environmental regulations wreck the economy?
Wayne L Hare
Wayne L Hare Subscriber
Feb 10, 2016 08:39 PM
Mr. Glimpse, these sheriffs who apply their own self-serving interpretation to the Constitution, especially the ever-pesky Article VI that says that the constitution (not some sheriff, or some EX sheriff, like Mack) is the final law of the land….they are ACTUALLY related, by blood, to our founding fathers? I’ve never read or heard that, so I’m skeptical. Can you help me out? I’m sure that many readers share my skepticism. And as far as them having pledged their life and liberty, I’m curious… pledged to whom and for what? Inquiring minds want to know. And finally, is there any particular thing that makes nutcases out of liberalism as you so authoritatively proclaim? Or are you just ranting about something you know nothing about? I mean, that’s not likely, you sure seem to know what you are talking about, but I’m just curious.

Ms. Eagar, if there is something in the Constitution that you want High Country News readers to know, you should just spit it out instead of telling us to go read some complicated part of the Constitution. But you seemed to really know what you were talking about and I totally trusted your obvious knowledge, so I did turn to your Article 1, Section 8, Clause 17, and guess what? There is nothing labeled ‘Clause 17’. Since you seem to think that there is, I am curious if you have ever actually turned to Article 1, Section 8. However, a quick internet search turned up the following information: Some folk, namely those that have participated in such events as the Nevada Bundy standoff and now the Sons-of-Bundy Malheur standoff, and their supporters, believe that there IS a clause 17 and that it proclaims this: “The Federal Government shall never own title to any real property which is not specifically authorized by this Constitution such as parks, forests, dams, waterways, and grazing areas without the consent of the State where same is located." If that is your gripe, you can now relax! Nowhere in the Constitution that you so revere do those words appear. You undoubtedly knew that. You were just joking, right? Boy oh boy! If that non-existent clause actually WERE in the Constitution, I’d be up in arms and right there beside the Bundys. But it’s not.

Just a thought, crazy perhaps, but if you folks who are so angry at the federal government and so convinced that liberal forces of evil are intent on taking over and turning us into a third world country because, um, it would be great to be like, ah, Somalia, if you kind of checked your facts and actually READ the Constitution, I think that you could relax and enjoy your beer a lot more. Of course, conspiracy theories are actually a LOT more fun. And there’s nothing more macho fun then to strut around with an AR-15 to make a man feel, you know, manly. Just sayin…
Patrick  Johnston
Patrick Johnston
Feb 11, 2016 08:38 AM
If you can spend years in jail for smoking a joint, then I think these law breakers should get life in jail.
DOUG HASH
DOUG HASH
Feb 11, 2016 01:09 PM
With respect to Mr. Hare
  The Article 1, Sect. 8, Cl 17 does exist but Clauses are not enumerated. It is commonly known as the "enclave clause", to wit "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 Congress, become the Seat of the 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;--"
  Art. IV. Sect. 3., is called the "property clause" which would, I believe, be more to the question of Federal vs State control of lands within the State's borders. Please do simple searches before launching. There is not so much "complicated" about the Constitution as it is time consuming. To a population bent on instant gratification the adherence to most laws is an inconvenience better overcome with emotional tirades instead of historical facts and precedents....Readers please note:
  The U.S. Supreme court is appointed by Presidential desire and endorsed by Congress. So, it stands to reason that any and all Presidents have sought to install their own political parties legacy over the good of the nation as a whole. The reasons that SCOTUS decisions have run the gauntlet from Slavery to Freedom and back again are contained in the whims of political parties and not to any moral turpitude on the part of the SCOTUS. I'm sure the Supremes would have us believe that once enthroned they surrender all political convictions and personal agendas to be always swayed by proper legal argument.......FAT CHANCE!
 It seems reasonable to me that the SUPREME court of the land would better serve the people if State Legislatures were to vote them in as was intended for the U.S. Senators. You see, in the beginning, Senators were to be appointed by State Legislatures and Representatives voted in by the people at large thereby creating representation for the two powers as the Founder's originally intended. Having Supreme Court appointments from the several States would help to nullify the political intrigue that has attached itself to our highest court.
Carrie Casagram
Carrie Casagram
Feb 11, 2016 03:33 PM
LOL. Well there you have it...Steve Snider pretending to know something about the Constitution.....along with so many ignorant of our rights and duties. Hey Steve...the "Territories" of the foreign corporation that resides outside of the united State of America, that's right....the District of Columbia, aka The United States, or, U.S.A., Inc., are limited. You did not know that, obviously, Like most of the People, you do not understand our Laws. We are talking about the Law of the Land, Common Law. That is what our Founders based the Constitution upon. Any comment made here, that our Constitution can not apply to today's world, is wholly based on ignorance of Common Law. Our Constituioon is based on individual rights and property rights. Not Mob Rule. You see, our founders understood that they needed a contract in place, to protect the people from tyrants and the uneducated. Many people, do not educate themselves properly, or they are deceived through a poor government centralized education system, so they do not understand what a Republic is all about. Not a Democracy...a Repulic! So here is a bit of information to add to your post, that suggests the Federal Government has any ownership rights of the People's Lands.....AND, concerns of the "Federal Territories".
Currently, there are sixteen territories of the United States, five of which are permanently inhabited: Puerto Rico, Guam, Northern Mariana Islands, the U.S. Virgin Islands, and American Samoa. Ten territories are small islands, atolls and reefs, spread across the Caribbean and Pacific, with no native or permanent populations: Palmyra Atoll, Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Wake Island, Midway Islands, Navassa Island and Serranilla Bank. Uninhabited Bajo Nuevo Bank is administered by Colombia, but claimed by the United States under the Guano Islands Act. And let us not forget the land mass called D.C., and military bases. The Continental united States lands are not "Fed Territories" Steve, the foreign corporation can not own our lands.
Our Country, Our Rights, Our Property our Republic, we are the free, sovereign, and independent people in whom the entire government of the land jurisdiction of the United States is vested. In our system, the people rule. The power is delegated from the people to the counties to the states to the federal government and at each level the amount of power is reduced.
In our system, the Republic System, all county governments function as assemblies of living people, all state governments are also assemblies of living people, all our offices are Public Offices, with Oaths, with Bonds. We honor and enforce the Organic Law of our nation--- The Articles of Confederation, The Declaration of Independence, The Constitution for the united States of America, the Land Act of 1785 and the Northwest Ordinance, the United States Statutes-at-Large.
I suggest the author, along with his cheering section here, take some very detailed courses on the Constituion, the Federalist papers, History, and gain a thorough understanding of the corporation posing as our government, and the unconstitutional use of fiat currency. If it gets confusing....just remember....follow the money, the malfeasance can be found, it effects all countries, keeps people in poverty, and at war, all over our world. The 1% have extracted their wealth, power, and weaponry, by fleecing America, and "sheep" our their greatest tool.
God Bless the patriots, the Constitutional Sheriffs, the Oathkeepers, and freedom fighters!!!!!
Carrie
Wayne L Hare
Wayne L Hare Subscriber
Feb 11, 2016 05:09 PM
Well no, Mr. Hash, Article 1, Section 8, really does not have any labeled ‘clauses’. That’s not important other than it makes me suspicious that Ms. Eagar has actually read the constitution or the clause that she clings to in support of the rebels. I believe that the rebels and their supporters are simply fed false information, believe it – as they are instructed to - and then go on the warpath against the federal government and the American people based on false information. Article 1, Section 8 does, however, have 18 sentences, the 17th of which does say what you quoted above: “The Congress shall 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 Congress, become the Seat of the 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.”

So I am still confused as to Ms. Eagar’s point that “Clause 17” clears everything up. I did do a simple search and did find that there is a certain population that holds as Holy Grail a false ‘Clause 17’ that they believe says, “The Federal Government shall never own title to any real property which is not specifically authorized by this Constitution such as parks…” Again, if it’s the so-called clause 17 that is the issue that supports the actions of the sagebrush rebels, then I remain confused. Read the actual wording in the actual Constitution and tell me how it applies or supports the notion that the federal government cannot own public land, which seems to be the issue. Or…believe the false ‘Clause 17’ and take up arms against the non-existent tyranny of the federal government.

More simple searching finds that the ACTUAL wording of this so-called clause merely allows Congress to exercise exclusive control over that federal district, i.e. DC, and over any structures constructed there that are necessary for carrying on the business of the national government; structures such as forts, arsenals, and post offices. It does not preclude the federal government from purchasing or holding title to other land within the various states, or from using public land for purposes such as establishing and managing parks, forests, dams, waterways, and grazing areas without the consent of the states in which those facilities are located.

So….tell me again how the Federal Government is abusing the Constitution? If folks are going to take up arms against the Federal Government and lay claim to land that belongs not solely or exclusively to them, but to all of us, or if you are going to support these terrorist, at the very least you ought to know what you are talking about. I don’t think that Ms. Eagar, other supporters of the rebels, nor the rebels themselves have a clue as to what they are talking about.
Brandon Glimpse
Brandon Glimpse
Feb 11, 2016 10:27 PM
Great article Carrie, glad to see their are Men in the West who see past all the smoke and mirrors of Obomar, speak and want to be heard in such a publication as one named The High Country News. Well how about some honest reporting not just some rehearsed political Fed- take over nonsense. They can't even run their affairs without borrowing some forty percent of what they spend every day....... Who does that!!!!!!!!!!!!!!!! Thanks again Carrie !!

Wayne L Hare
Wayne L Hare Subscriber
Feb 11, 2016 11:20 PM
Um…HUH?!?!
Brian Burke
Brian Burke Subscriber
Feb 13, 2016 07:24 PM
Please don't describe these sheriffs and their behavior as "constitutional."
Paul Lindholdt
Paul Lindholdt
Feb 13, 2016 07:55 PM
Trolls posing as constitutional law experts here, what a waste of space.
Greg Stuessel
Greg Stuessel
Feb 14, 2016 10:58 PM
Wayne L Hare, you left the most important part of the "Supremacy Clause" out in your quote of it.
“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; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”
That part, “WHICH SHALL BE MADE IN PURSUANCE THEREOF” is the most critical part of the clause. This part is normally omitted when a person is trying to extol the virtues of a federal government supreme to everything and everyone. But, that is not how it was written. In fact, it’s not hard to see what the original intention of the document was to be. One only has to refer to the 5 Volume set of the state ratifying conventions to see EXACTLY what is to be understood by our founding document. You can access the 5 volume set for free at: http://oll.libertyfund.org/titles/1904
They are entitled: The Debates in the Several State Conventions of the Adoption of the Federal Constitution, 5 vols. [1827]
It is imperative that one understand how the separate spheres of power function in our dual federalism system. Each government (both state and federal) Hamilton assured the New York Ratification Convention, was supreme in its sphere, stressing that:
"this balance between the National and State governments . . . is of the utmost importance. .. . It forms a double security to the people." ~ [Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Volume 2, Pg. 257]
The Tenth Amendment and the supremacy clause are nicely geared to reflect this equilibrium - the former to preserve to the States powers not delegated to the United States, the latter to make delegated powers supreme.

 The anti-federalist’s saw the supremacy clause during the debates and pointed to it with alarm. Why, this clause will enslave the states was the rallying cry and one reason that so many opposed ratification of our present constitution. Only through great pains did the federalists finally explain the clause in detail that finally swayed enough states to ratify.

In Federalist No. 33, Alexander Hamilton wrote that laws

''which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities" of the States "will be merely acts of usurpation," not "the supreme law of the land."

In the Virginia Ratifying Convention, John Marshall assured the Ratifiers that the supremacy clause did not extend to all cases, that a federal

"law not warranted by any of the enumerated powers" would constitute "an infringement of the Constitution." [Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Volume 3, Pg. 553]

William Davie, discussing the supremacy clause in North Carolina, said a federal law

"can be supreme only in cases consistent with the powers specially granted, and not in usurpations." [Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Volume 4, Pg. 182]

James Iredell explained that the supremacy clause meant only that

''when Congress passes a law consistent with the Constitution, it is to be binding on the people." and he emphasized that "the question, then, under this clause, will always be whether Congress has exceeded its authority." [Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Volume 4, Pg. 179]

And Chief Justice McKean told the Pennsylvania Ratification Convention that the meaning of the supremacy clause

"is simply this, that the Congress have the power of making laws upon any subject over which the proposed plan gives them a jurisdiction, and that those laws thus made in pursuance of the Constitution, shall be binding upon the States." [McMaster, J. B., and Stone, F., Pennsylvania and the Federal Constitution 1787-1788 (Lancaster, Pa., Inquirer Printing, 1888). Page 103.]

These sheriffs are not doing anything more than what was instructed of them and all who take the oath to the Constitution. In fact, James Madison gave an outline of what it could/should look like if the federal government stepped outside of its prescribed boundaries in Federalist #46:

“Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.”

So, in the case of unconstitutional laws (unwarrantable measure) and even with some constitutional laws (warrantable measure) the method of handling the “usurpations” was:
 The people are to let their representatives know they’re dissatisfied (both state and federal) – “The disquietude of the people…”
 The states are not to help the federal government in the enforcement of the law in any way “…refusal to cooperate with officers of the Union…”
 And, the states are to pass all manner of laws against the federal act so as not to comply with it – “…created by legislative devices… would oppose, in any State, very serious impediments…”

So, these acts of defiance that the author casts in the light of being crazy or irrational are actually instrumental to maintaining our union in its proper role where each government remains within its prescribed sphere of influence and thus maintains the rights of the people.
Brian Burke
Brian Burke Subscriber
Feb 15, 2016 02:29 PM
So, I guess this means that any rebel sheriff, or rebel county, or rebel state, could, in exercise of their own disquietude, and in defiance of federal constitutional authority, mistreat its own citizens, limit educational opportunities, curtail voter rights, pollute its own streams, and redistribute land to themselves. Well, if precedent has any say, I guess you might have a point.
Brian Burke
Brian Burke Subscriber
Feb 15, 2016 02:29 PM
So, I guess this means that any rebel sheriff, or rebel county, or rebel state, could, in exercise of their own disquietude, and in defiance of federal constitutional authority, mistreat its own citizens, limit educational opportunities, curtail voter rights, pollute its own streams, and redistribute land to themselves. Well, if precedent has any say, I guess you might have a point.
Steve Snyder
Steve Snyder Subscriber
Feb 15, 2016 02:39 PM
Guess what, Greg ... the clause is there, and thus what you claim as "acts of defiance" within the current system are more than that, and even unconstitutional when conducted by elected officials.

**Your attempt at rewriting history is rejected.**
Thomas Arvensis
Thomas Arvensis
Feb 15, 2016 03:28 PM
Brian Burke - Why does your fantasy immediately go to violations of rights and mistreating the environment? Do you believe that the federal government has a monopoly on morality? lol
Greg Stuessel
Greg Stuessel
Feb 15, 2016 10:41 PM
Brian Burke, I think where we are having the misunderstanding is in how one views federal authority. The Constitution does not give the federal government cart blanche power over the states or their citizens. The constitution is a document of enumerated powers, meaning if a power is not authorized by the Constitution, then the federal government does not have it. So, when the federal government does go outside of its prescribed powers it is actually the one creating the infraction. Think of it as you would jurisdiction. If a police officer from another state pulled you over and tried to issue you a ticket, you would think he was crazy. Why? Because he is clearly out of his jurisdiction. He only has authority in the area he was prescribed to have it in; usually a county or municipality. In the same way, when the federal government goes outside of its “jurisdiction”, i.e. its Constitutional boundaries, it is just like the cop from out of state pulling you over.

No, the sheriffs are not allowed to go rebel. But, these sheriffs are not going rebel, they are trying to enforce jurisdictional boundaries on federal agents who think they have none.

It all goes back to where is the division between the states and the federal government? It is critical that we understand this division if we want to understand how our union is to function. So, where do we go to find the answer to this division? You go back to the state ratifying conventions because this is where the people, through their states, were deciding if this new Constitution was to be approved or should they just stick with the articles of confederation.

These debates were recorded in a 5 volume set that can be easily read and researched yourself. If you are interested in reading them or looking up any of my citations you can go to them by clicking this link: http://oll.libertyfund.org/titles/1904

The Federalists at each of the state ratifying conventions were put on the spot to convince not only the anti-federalists but the people of the states as to how this new government would function and be limited. In the New York ratifying convention, it was Alexander Hamilton who explained how this new government was to function and interact with the states.

Hamilton explained the powers thusly:

”The laws of the United States are supreme, as to all their proper constitutional objects; the laws of the states are supreme in the same way…

He fleshed this out,

“…the states have certain independent powers, in which their laws are supreme; for example, in making and executing laws concerning the punishment of certain crimes, such as murder, theft, etc. the states cannot be controlled…”

(I’m going to paraphrase because Hamilton goes on for several pages) The only area of overlap into the state’s power, would be some taxing power that the new government would receive to carry out its duties. The reason this discussion was so heated and important was because as chief justice John Marshall stated: “the power to tax involves the power to destroy” and that is exactly what the people feared. The destruction of local control through their state governments. At the end of his explanation of how the powers would function, Hamilton made it very clear to the committee that the new federal government would NEVER unseat the states as the center of power for their citizenry when he stated:

“…it must be utterly repugnant to this Constitution to subvert the state governments, or oppress the people.” ~Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Volume 2 page 356

So, where was the line between the state and the federal government? How would the people know when the new federal government had gone too far? Well, James Wilson answered that question when he stated in the New York Ratifying Convention that:

“They found themselves embarrassed with another, of peculiar delicacy and importance…of drawing a proper line between the national government and the governments of the several states. It was easy to discover a proper and satisfactory principle on the subject. Whatever object of government is confined, in its operation and effects, within the bounds of a particular state, should be considered as belonging to the government of that state; whatever object of government extends, in its operation or effects, beyond the bounds of a particular state, should be considered as belonging to the government of the United States…

And that seems like a pretty easy concept for people to grasp. One that the politicians should be able to handle when dealing with legislation concerning the citizenry. If it’s within our own borders, it’s the states jurisdiction and if it’s not, then the federal government can have a say. But, Wilson did caution that,

“though this principle be sound and satisfactory, its application to particular cases would be accompanied with much difficulty, because, in its application, room must be allowed for great discretionary latitude of construction of the principle.” ~ Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Vol. 2, Pg. 424

So, Wilson was cautioning that there would have to be a little give and take on the part of everyone and consider the good of the union when making decisions on the federal governments taxing power. He continued:

“In order to lessen or remove the difficulty arising from discretionary construction on this subject, an enumeration of particular instances [Powers], in which the application of the principle ought to take place, has been attempted with much industry and care.” ~ Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Vol. 2, Pg. 424

In other words, the framers had worked very hard to enumerate the powers (if a power was not mentioned, it was not given) of this new federal government. He cautioned that:

“It is only in mathematical science that a line can be described with mathematical precision....But…upon the strictest investigation, the enumeration will be found to be safe and unexceptionable, and accurate, too, in as great a degree as accuracy can be expected in a subject of this nature.” ~ Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Vol. 2, Pg. 424

This understanding of how the union was to function ran throughout the state ratifying conventions. Robert Livingstonsaid in the New York Ratifying Convention:

”We have thirteen distinct governments … the states, and the United States, have distinct objects. They are both supreme. As to national objects the latter is supreme; as to internal and domestic objects, the former.” ~ Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Volume 2 page 385

In Federalist Number 45, James Madison wrote:

“The powers delegated in the proposed constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”

Judge Edmund Pendleton, explained in the Virginia Ratifying Convention that:

“The two governments act in different manners, and for different purposes, the general government in great national concerns, in which we are interested in common with other members of the Union; the state legislature in our mere local concerns… They can no more clash than two parallel lines can meet.” ~ Wood, G. S. The Creation of the American Republic 1776-1787 (Chapel Hill, University of North Carolina Press, 1969). Pg 529

Alexander Hamilton assured the Ratifiers in Federalist No. 32 that: “the State governments would clearly retain all the rights of sovereignty which they before had, and which were not exclusively delegated to the United States. This exclusive delegation, or rather alienation, of State sovereignty, would only exist in three cases: where the Constitution in express terms granted exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory and repugnant.”

Madison stated in Federalist No. 39 that the jurisdiction of the proposed government: “extends to certain enumerated objects only, and leaves to the States a residuary and inviolable sovereignty over all other objects,”

And he added in Federalist No. 40 that the Constitution regards the States: “as distinct and independent sovereigns.”

And the quotes and sentiments of what the will of the conventions were go on and on and on.

Our problem today is that we aren’t taught dual federalism. We’re barely taught anything at all about our Constitution. So, we don’t understand it nor the oath of office that is taken to it or its significance when someone actually tries to uphold it. And because we don’t understand the Constitution as the limiting document that it is, most of us today think anyone who stands against federal authority as the one that is in the wrong when it really should be the other way around.
Carrie Casagram
Carrie Casagram
Feb 16, 2016 11:25 PM
Thank you Greg!!!!!
Robert Lavoy
Robert Lavoy
Feb 18, 2016 05:58 PM
Steve Snyder
I have a question regarding Federal Land ownership. I have been reading some comments and trying to follow along and learn what I can.
In regard to Article IV Section 3 where it says:
"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, or of any particular State."

This does not say how the property may "come to belong" to the United States. It is speaking of property that "already does" belong. The words are "belonging to" the United States.

I have heard people say that the only way the United States can possess land located in a State is by Authority granted in Article I Section 8 (17)
In that section it Authorizes unquestionable authority in the previously mentioned 10 mile square area. That appears undisputed from what I can tell. Now here is where my question for you comes, regarding additional lands purchased within the States: it says the United States may excercise the same "Authority over all Places purchased by (A) the Consent of the Legislature of the State in which the Same shall be, (B) for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings"
I see in this Article the means by which the United States may acquire lands not already belonging to it.
Why would the writers put clause (A) and clause (B) in this Article if they didn't matter ? Especially (A) since it requires the legislature of the State in question ? (the "A" and "B" were to clarify my question)
I appreciate you taking the time. I have been wondering since reading these two sections.
Specifically when it comes to ACQUIRING land, which I do not see addressed at all in Article IV section 3 ?

again, my question is specifically on ACQUIRING land. What is the correct way, constitutionally for that to occur ?

I appreciate your thoughts and response.
Thank you.

Robert
Steve Snyder
Steve Snyder Subscriber
Feb 18, 2016 06:37 PM
Greg: Total straw man.

Robert: Simple. ALL land outside the original 13 colonies was acquired either by treaty or war; land east of the Mississippi outside the current boundaries was ceded by said states, in most cases already under the Articles of Confederation government.

So, you'd be wrong.

And, let's stop citing Article 1, Section 8, Clause 17. It applies ONLY to the establishment of what is today the District of Columbia. Period and end of story. There's no need to keep invoking it as if it were some shibboleth applying to other issues.

Beyond that, Article IV, Section 3 notes:
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, or of any particular State.

Given that, as I noted, territorial lands existed at the time of the creation of the current government of the United States by ratification of the Constitution, this answers your question for all lands east of the Mississippi outside the current 13 colonies. Period. End of story.

As for the rest? Article 6:
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; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

All those lands acquired by treaty belong to the federal government as territories.

Land inside the original 13 states was acquired by appropriate means.

As for building forts, etc., on land as necessarily, that's covered by clauses in Article 1, Section 8, above your Clause 17 which give Congress specific powers regarding the armed forces etc.

I will answer no more questions that are based on constitutional misinterpretation.
Robert Lavoy
Robert Lavoy
Feb 18, 2016 07:19 PM
Steve

When you say:
And, let's stop citing Article 1, Section 8, Clause 17. It applies ONLY to the establishment of what is today the District of Columbia. Period and end of story. There's no need to keep invoking it as if it were some shibboleth applying to other issues."

Steve,
How can that even make sense, that it applies only to the District of Columbia if it requires the consent of the legislation of the Same State in question, and the District of Columbia is not a State ? There is no logical flow in that, that I can see at all ?

Your answer almost seems to imply:
"The United States just owns everything - end of story - I don't want you to bring up anything in the constitution that I don't like"
I really didn't mean to offend.
I was just looking for a logical answer that can be understood in terms of what is written in the Articles. I don't think that's unreasonable.

Anyway,
I will look for answers that have a clear flow of reasoning and are in sync from a constitutional perspective.

I think that's a reasonable approach.

thank you for your response
no more questions...

Robert
Steve Snyder
Steve Snyder Subscriber
Feb 18, 2016 07:56 PM
Robert, thanks for confirming you have the crackpots and wingnuts interpretation of the "District of Columbia" clause. I have nothing further to say, nor a desire to waste more time on you or your ilk.
Robert Lavoy
Robert Lavoy
Feb 18, 2016 08:28 PM
Does anyone know where to locate the Fish and Wildlife Service study that Sue Hammond discovered, that showed the migratory birds were 13 times more likely to go to private land than to the Wildlife Refuge Land the Bureau of Land Management was managing ? Which pissed them off apparently and caused them to want revenge on the Hammonds ? After which time multiple abuses began to be unleashed on the Hammonds in an effort to steal their land. Oh yes - the TERRORISTS those Hammonds. The BLM got "first right of refusal on their property"... glad they have all the best interests of their neighbors in mind. Good folks those BLM people. They put Sue Hammonds husband and son in prison - you know, the TERRORISTS that were attacking America. That's right, they lit a fire on their own property to burn the United States of America down. Good thing those dangerous TERRORISTS are in prison for lighting a fire in their yard that the wind blew into the United States of America. Thank you BLM for saving the day and getting "first right of refusal" on the Hammond property. How can we thank you for putting those bad men in prison. I'm glad we can count on the BLM to never burn private property, and never kill ranchers cows when they light fires.
The BLM always has everyone's best interest in mind and besides they need ranchers land or they would have no area that the migratory birds come to. Good friendly park rangers with attack dogs and AR-15's. Good thing too that they are not standing for the mindless, violent hoodlums, and senseless morons and dangerous extremists that think the Hammonds were mistreated. Thank you BLM !
There are 28,000 signatures of more of these thugs, calling for the Hammonds release. Those extremists should all be rounded up and put in the same jail cell for aiding and abetting the horrible TERRORISTS that tried to burn down America.
Thank you BLM ! You saved the day and the birds!
Steve Snyder
Steve Snyder Subscriber
Feb 18, 2016 08:33 PM
Oh, lordy, not just espousing crackpot and wingnut theories about the DC Clause, we've got another conspiracy theorist on our hands.
Thomas Arvensis
Thomas Arvensis
Feb 19, 2016 08:02 AM
When did DC become a state?

Try not to challenge Steve's superior intellect, Robert. You will be barraged by fallacies. Clearly his interpretation of the constitution is flawless - I think Barry Obama is looking to have him fill Scalia's robe.
Kyle Gardner
Kyle Gardner Subscriber
Feb 19, 2016 09:49 AM
Can we please get a constitutional perspective on this? Don't we enshrine the "separation of powers" somewhere? Each branch of government has fundamental responsibilities and there is a long history of case law about overreach, where one branch attempts to both enforce and interpret the law. Isn't that happening here, where an executive officer assumes he is also responsible to interpret the law? Would this not violate something fundamental in our system? Would impeachment and/or recall not be an appropriate method to resolve such an obvious violation? It's not at all impressive to hold up your pocket version of the Constitution while attempting to deflect tough questions, or demonstrate a false bravado in front of the cameras. In the absence of a convincing idea, based in reality, a badge or a gun or a flag are merely symbols of tyranny.
Greg Stuessel
Greg Stuessel
Feb 20, 2016 12:53 PM
I think the one thing everyone should be aware of in taking part in discussions is if someone does not or cannot cite a source for their view, it is an opinion. And, it’s not worth the effort to even engage with someone who does not cite their sources, especially when dealing with a document with such a plethora of historical and legal information surrounding it; such as the Constitution. And, it needs to be more than Wikipedia to be taken in any kind of serious context as Harvard University explains on their website: http://isites.harvard.edu/i[…]7&pageid=icb.page346376

Even the article itself starts heading off into the weeds of opinion and should be taken as such. Just an observation from the comments that I’ve read on here.
Steve Snyder
Steve Snyder Subscriber
Feb 20, 2016 02:16 PM
Greg, actually, Wikipedia is not all bad. Like its information on the Liberty Fund and its political stance, which is quite liberatarian:
https://en.wikipedia.org/wiki/Liberty_Fund
Steve Snyder
Steve Snyder Subscriber
Feb 20, 2016 02:18 PM
And, Liberty Fund founder Pierre Goodrich was ultimately connected to the Mont Pelerin Society:
https://en.wikipedia.org/wiki/Mont_Pelerin_Society
Greg Stuessel
Greg Stuessel
Feb 20, 2016 04:16 PM
I believe you proved my point Steve and it is quite telling that you were the first one to respond. Thank you.
Steve Snyder
Steve Snyder Subscriber
Feb 20, 2016 06:56 PM
Sourcewatch has similar information, Greg. I only regret I didn't post the Wikipedia links when you posted your first one from Liberty Forum.
jim bolen
jim bolen Subscriber
Feb 20, 2016 08:35 PM
Well I have been in Montana the last 10 days and have come back to the most ridiculous arcane and picayune arguments from the so called constitutionalist in defense of their positions. The supreme court has already settled the argument that the federal government rightfully owns these public lands held in trust for the American people. End of Argument.
The states rights issue for the most part has been a front to protect powerful economic interests. It is all about greed and power and the environment be damned. As corporation have become more powerful and certainly more since "citizens united case" the federal government is our firewall protecting us from more corporate abuses that the States are too weak and corrupt to fight against. Not saying that the feds are not unduly influenced but at least we have a fighting chance if we elect the right people. As income continually is concentrated in the top 1% and opportunity continues to decline for the rest of us the wealthy special interest continue to attack our public lands through various straw men and lies (global warming deniers) to continue to profit as long as possible at the detriment of the rest of us.
The line is down in the sand. "our public lands belong to the American people and we are not going to give them up so that a few can profit from raping the land.
To quote Bob Dylan "money doesn't talk it swears"
Paul Lindholdt
Paul Lindholdt
Feb 20, 2016 09:32 PM
Nice post, Jim Bolen. These so-called constitutionalists ought to study up, take a bar exam, get licensed, and then see if they still believe the hot air blowing up from the county sheriffs.
Thomas Arvensis
Thomas Arvensis
Feb 21, 2016 03:51 PM
@jim bolen- "...the federal government is our firewall protecting us from more corporate abuses that the States are too weak and corrupt to fight against."

What country do you live in?

The revolving door that exists between large corporate interests and the federal government is seamless.
Steve Snyder
Steve Snyder Subscriber
Feb 21, 2016 07:05 PM
Thomas, as leaky and porous as that firewall is, it's still better than the dismantling of the firewall that ALEC, the American Lands Council, and other big dollars that push the ideas floated by the Sagebrush Rebellion would install. And, if the leaders of the Sagebrush Rebellion think they could stand up to big dollars on their own without even a leaky firewall, they're even crazier than they've already shown. The Bundys? They'd be forced to become part of a corporate, international ranching company, for example.
Greg Stuessel
Greg Stuessel
Feb 22, 2016 02:55 PM
Steve, the fact that liberty fund's servers hold books does not discredit the book any more than your public library holding a book would discredit the book. My citations were from books, not the site. The web address I gave was merely the location that they could download the book from in multiple digital formats. The fact that you are trying to make an argument for Wikipedia after it has already been established by Harvard, no less, that it is not a reliable source…I guess you’re not trying to say that you know more than Harvard?
You are trying to make an academic argument on the Constitution. So, make it...academically. Academia does not recognize Wikipedia as a solid source for citation. With your vast knowledge of the Constitution, this should be no trouble for you. I'm sure you've read countless volumes on the subject of the Constitution, so, start your citations. Otherwise, it is you simply giving your opinion.
Steve Snyder
Steve Snyder Subscriber
Feb 22, 2016 03:38 PM
Erm, I've already made plenty of academic arguments about the constitution, Greg. Most of what you claim in your long first comment is trumped by the "necessary and proper" clause.

Thanks for giving your opinion. I just gave you history.

As for the last bullet point on your first long statement? That's called ... erm, **nulllification.** Andrew Jackson first directly addressed this when John Calhoun played that card.
Greg Stuessel
Greg Stuessel
Feb 22, 2016 04:33 PM
Jim Bolen, I was also taught that the Supreme Court was the final say in all things Constitutional. But, upon further study and examination, I found that even the founders themselves were torn on the issue. The biggest problem with the Constitution was that as soon as it was safely ratified by the people, through their states, it was immediately set upon to undermine what had been promised to the people it had meant before its ratification.

We just saw how dangerous the unfettered belief in the Supreme Court can be in the way Obamacare happened. Just about everyone knew that the seizing of our healthcare system by the federal government was unconstitutional. But, to force people to buy a product against their will? That had NEVER been contemplated in over 200 years of our nations existence, yet suddenly the document now showed that they could? That’s what the Supreme Court just told us, courtesy of John Roberts. So, all this time, we had just been too dumb to know that that power of the federal government had been sitting there this whole time. Right.

The Supreme Court has been the primary way that the federal government has expanded its power since FDR came up with the court packing idea. The check on the judiciary is supposed to be congress but, we can forget that ever happening because we are no longer represented at the federal level.

Our representation isn’t even constitutional. The constitution states that there is supposed to be one representative for every 33,000 people. Today, there are more than 710,767 people (as of the 2010 census) for every representative. Why? Because for the first 140 years of the republic, the House increased in size with the population in varying degrees, going from 65 members originally to 435. But, in 1929, a Republican Congress and president enacted the Reapportionment Act of 1929, which arbitrarily capped the number at 435 members.
One representative of the time put it bluntly:

“The bill seeks to prescribe a national policy under which the membership of the House shall never exceed 435 unless Congress, by affirmative action, overturns the formula and abandons the policy enunciated by this bill. I am unalterably opposed to limiting the membership of the House to the arbitrary number of 435. Why 435? Why not 400? Why not 300? Why not 250, 450, 535, or 600? Why is this number 435 sacred? What merit is there in having a membership of 435 that we would not have if the membership were 335 or 535? There is no sanctity in the number 435 … There is absolutely no reason, philosophy, or common sense in arbitrarily fixing the membership of the House at 435 or at any other number.” ~ Missouri Representative Ralph Lozier, 1928

The purpose of the federal house was to a true representation of the people, and we haven’t had constitutional representation since. Hell, we’re not even represented at all anymore. A 2014 Princeton Study showed that:

“the preferences of the average American appear to have only a minuscule, near-zero, statistically non-significant impact upon public policy.” http://scholar.princeton.ed[…]f_american_politics.doc.pdf

So, I don’t see how a government who doesn’t even acknowledge the people is going to hold any land in trust for them.
Steve Snyder
Steve Snyder Subscriber
Feb 22, 2016 04:47 PM
So, I trust the Supreme Court ... until it extends civil liberties and civil rights to classes of people I demonize. Got it. I'll but you're trying to figure a way to nullify that one, too, Greg.
Greg Stuessel
Greg Stuessel
Feb 23, 2016 11:25 AM
Steve, do you even realize that you’re arguing on the side of your own oppression? You are advocating an unfettered government that recognizes no limit on its power. **sigh** But, to the rebuttals…

So, to the “nullification” comment buttressed with the “until it extends civil liberties and civil rights to classes of people I demonize” sounds like a veiled attempt at calling me a racist. And, while ad hominem attacks work for people who have nothing factual to add to a discussion, I’m sure I must be misinterpreting those statements, for you are far too smart to sink to that level.

But, yes, the argument made for nullification was passed by Madison and Jefferson in the Virginia and Kentucky Resolutions of 1798 against the Alien and Sedition Acts of the time based on the original understanding of what had been explained/promised in the state ratifying conventions. But, this first concept of nullification was far before Calhoun or Jackson were in office. But, more importantly, the quotations that I’m citing pre-date the Virginia and Kentucky resolutions. They are BEFORE the Constitution was ratified. Back when the people were being told what the Constitution ACTUALLY meant while they were debating to ratify it. The people, who were acting through their states at the time, had a bait and switch pulled on them. For, as soon they had ratified the Constitution, it immediately began to be undermined and the very thing(s) that they had been told the Constitution could NEVER mean, suddenly it meant exactly that. For example:

Alexander Hamilton stated in Federalist Number 17 that:

"the supervision of agriculture and of other concerns of a similar nature. . . which are proper to be provided for by local legislation, can never be desirable cares of a general [federal] jurisdiction,”
But, then turned around in his Report on Manufactures in 1791 and stated:

“…It is therefore of necessity left to the discretion of the National Legislature…whatever concerns the national interest of learning, of agriculture, of manufactures, and of commerce, are within the sphere of the national councils, as far as regards an application of money.”

So, agriculture and similar “concerns” are for the local jurisdiction BEFORE the Constitution is ratified but, AFTER it is safely ratified suddenly agriculture, etc. are now in the sphere of the federal government. And, that is how things have gone since the ratification of the Constitution.

But, we must remember that the Constitution is a contract (actually the term used by the founders is compact, which is the term for an agreement between sovereign governments) and in a contract/compact whenever there is a disagreement between parties of the document you are always to go back to the original understanding of the document or a “meeting of the minds”. And that is where the state ratifying conventions come in which is why anything stated or decide other than the Philadelphia Convention or the state ratifying conventions is irrelevant, because this is the meaning of the document before it was signed on the dotted line.

As to the “necessary and proper clause”:

Article I employs seventeen sections to enumerate the various powers granted to the federal government, and then by section 18 provides power:

“To make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the Government of the United States.”

Hamilton, Madison, and Wilson corroborated the plain meaning of the text.

In Federalist No. 33, Alexander Hamilton wrote:

''What is a power but the ability or faculty of doing a thing? What is the ability to do a thing but the power of employing the means necessary to its execution?...What are the proper means of executing such a power, but necessary and proper laws? ~ Federalist No. 33 at 199

James Madison stated that the clause:

"gives no supplementary power. It only enables them to execute the delegated powers...For when any power is given, its delegation necessarily involves authority to make laws to execute it." ~ Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Volume 3 page 438

And James Wilson stated that the clause says:

"no more than that the powers we have already particularly given, shall be effectually carried into execution." ~ Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Volume 2 page 468

He also rejected the argument that the clause gives to Congress "a power of legislating generally.":

“The gentleman in opposition strongly insists that the general clause at the end of the eighth section gives to Congress a power of legislating generally; but I cannot conceive by what means he will render the words susceptible of that expansion. Can the words, "The Congress shall have power to make all laws which shall be necessary and proper to carry into execution the foregoing powers," be capable of giving them general legislative power? I hope that it is not meant to give to Congress merely an illusive show of authority, to deceive themselves or constituents any longer. On the contrary, I trust it is meant that they shall have the power of carrying into effect the laws which they shall make under the powers vested in them by this Constitution.” ~ Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Volume 2 page 448-449

That the clause was not designed to enlarge existing grants was made clear in other conventions.
In the Virginia Ratifying Convention, George Nicholas stressed that:

“The clause which was affectedly called the sweeping clause contained no new grant of power. To illustrate this position, he observed that, if it had been added at the end of everyone of the enumerated powers, instead of being inserted at the end of all, it would be obvious to anyone that it was no augmentation of power. If, for instance, at the end of the clause granting power to lay and collect taxes, it had been added that they should have power to make necessary and proper laws to lay and collect taxes, who could suspect it to be an addition of power? As it would grant no new power if inserted at the end of each clause, it could not when subjoined to the whole.” ~ Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Volume 2 page 443

He also stated in the convention that:

"The committee will perceive that the Constitution had enumerated all the powers which the general government should have, but did not say how they were to be exercised. It therefore, in this clause, tells how they shall be exercised. Does
this give any new power? I say not." ~ Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Volume 3 page 245

Randolph stated in the Virginia Convention that before the federal Convention:

"The augmentation of congressional power was dreaded." ~ Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Volume 3 page 188.

The "sweeping clause," he said, "does not in the least increase the powers of Congress. It is only inserted for greater caution." ~ Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Volume 3 page 106.

These last words meet his subsequent remark that

“the necessary and proper clause is superfluous if it only pertains to incidental powers.” ~ Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Volume 3 page 463.

James Madison maintained that the clause:

"gives no supplementary powers." ~ Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Volume 3 page 438

In the North Carolina Ratifying Convention, Archibald Maclaine said:

"the clause gives no new power" ~ Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Volume 4 page 141

and Chief Justice McKean said in Pennsylvania State Ratifying Convention that it:

"gives to Congress no further powers than those enumerated." ~ Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Volume 2 page 537

Speaking to the clause in the North Carolina Ratifying Convention, James Iredell declared:

"If Congress, under the pretence of exercising one power, should, in fact usurp another, they will violate the Constitution." ~ Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Volume 4 page 179.

The Founders' emphasis that the necessary and proper clause does not confer additional powers militates against the doctrine of implied powers that go beyond "means." What was denied under that express provision cannot be conjured out of the blue by "implication."

Again and again the framers sought by painstaking drafting to guard against ambiguity that would invite "liberal" interpretations.

The word "inhabitant" was substituted for "resident" because it was less liable to misconstruction ~ Max Farrand, The Records of the Federal Convention of 1787 (1911) Volume 2 pages 217 - 218

"make" war was supplanted by "declare" because "'make' war might be understood to 'conduct' [it] which was an Executive function." ~ Max Farrand, The Records of the Federal Convention of 1787 (1911) Volume 2 page 319

The draft of the Supreme Court's jurisdiction reading that "it shall be appellate" was changed "to 'the supreme Court shall have appellate jurisdiction,' in order to prevent uncertainty whether 'it' referred to the supreme Court) or to the Judicial power." ~ Max Farrand, The Records of the Federal Convention of 1787 (1911) Volume 2 page 437

And George Mason's suggestion that "maladministration" be made cause for impeachment was changed to "high crimes and misdemeanors" because Madison urged that "maladministration" was a "vague" term. ~ Max Farrand, The Records of the Federal Convention of 1787 (1911) Volume 2 page 550
Greg Stuessel
Greg Stuessel
Feb 23, 2016 01:41 PM
For those who wish to learn about our Constitution and what its original construction was to be, may I recommend the following books:

The Federalist and Anti-Federalist Papers
Jonathan Elliot’s Dates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, D.C., 1836). Volumes 1-5

Max Farrand’s The Records of the Federal Convention of 1787 (1911) Volumes 1-3

Federalism: The Founders Design
Hardcover: 223 pages
Publisher: University of Oklahoma Press; 1st edition (July 1987)
Language: English
ISBN-10: 0806120592
ISBN-13: 978-0806120591

States’ Rights and the Union: Imperium in Imperio, 1776-1876
Paperback: 304 pages
Publisher: University Press Of Kansas; Edition Unstated edition (November 1, 2002)
Language: English
ISBN-10: 0700612270
ISBN-13: 978-0700612277

The Creation of the American Republic, 1776-1787
Paperback: 675 pages
Publisher: University of North Carolina Press (March 18, 1998)
Language: English
ISBN-10: 0807847232
ISBN-13: 978-0807847237

The American Republic: Constitution, Tendencies and Destiny
(FREE ON AMAZON KINDLE)
Print Length: 174 pages
Page Numbers Source ISBN: B004HW83N8

A Brief Enquiry Into The True Nature And Character of Our Federal Government
Print Length: 158 pages
Publisher: Constitution Society; 1868 edition (March 7, 2009)
Sold by: Amazon Digital Services, Inc.
Language: English
ASIN: B001UV3F3M

Murray Rothbard’s - Conceived In Liberty
ISBN 9781933550985
eISBN 9781610164863
UPC B004KZPJBQ
Publisher Ludwig von Mises Institute
Publication Date 2000
Page Length 1616

Many of these resources are available online for free since their copyright has expired due to their age. And the others are quite cheap on Amazon's used books.
Steve Snyder
Steve Snyder Subscriber
Feb 23, 2016 01:56 PM
Well, HCN, I'm moving ever closer to not renewing that subscription. At a minimum, since you've asked for easy "fixes" on commenting, a three-day cutoff would surely be doable with your current system.
Wayne L Hare
Wayne L Hare Subscriber
Feb 23, 2016 02:14 PM
I’m not really too sure that the story was actually about the Constitution of the United States. It seems to me the story was more about a group of armed, white, thug, bullies - some with badges and the aura of lawfulness so long as the laws are those that they personally support - some without badges - doing what they damned well please under the guise of protecting the constitution with never-ending, lengthy, written and verbal self-serving, interpretations of the constitution bolstered by an amazing amount of conjecture and cherry-picked opinions by a lot of folks who’s opinions matter not a bit because they were not supreme court justices who themselves make minor mistakes. Remember Dred Scott? Call me weird, but I don’t EVER wake up worrying about the constitution. I do spend SOME time worrying about armed thugs though who are convinced that they are doing both God’s, our founding fathers’, the extreme white wing's, and Cliven Bundy’s work. Wasn’t Hitler an armed, white, thug, bully with an agenda who appealed to a similar demographic and mentality? So I can’t help but wonder what this is really about. Hmmm…lemme see…gained steam after Obama’s election; participants are all white….nope, I’m not coming up with anything. Personally I put a rather small amount of stock in the groups that are involved, drawn to, or have influenced the movement: Sovereign Citizens; The Oath Keepers; COSPA; Ex-‘Sheriff’ Mack - until the voters un-elected him….a rare occurrence; ‘Patriots' akin to Timothy McVeigh; Posse Comitatus; James Edwards’ of ‘The Political Cesspool’. Now what do those groups have in common….what can it be? Again, call me a wackadoodle, and I don;t know about you, but I sure don’t want ANY of them as neighbors. And I’m curious here. “Blue Lives Matter’ seems to be awfully silent when these armed white thugs are pointing firearms at and shooting at Law Enforcement Officers. They seem to get awfully riled up SOMEtimes? What can the difference be? They would, by their extreme silence, almost seem to be on the side of armed, white, thugs who are willing to actually KILL police officers. But no…they are FOR law enforcement. Damn! This is confusing. Hmmmm….If I dwell upon it, maybe I can figure out what the connective tissue is here. Lemme think…lemme think...
Steve Snyder
Steve Snyder Subscriber
Feb 23, 2016 02:16 PM
Thanks, Wayne. No, it's not. I've been told that HCN has closed comments. Let's see if this posts or not.
Steve Snyder
Steve Snyder Subscriber
Feb 23, 2016 02:17 PM
And, OK, maybe it takes a few minutes for comments to officially cut off, as far as implementation by the content management system.
Kate Schimel
Kate Schimel Subscriber
Feb 23, 2016 02:22 PM
This comment section remains open, for the moment. However, I do ask that comments remain focused on the article at hand and the substance of the conversation. You can find our policy here: https://www.hcn.org/policies/comments-policy
Greg Stuessel
Greg Stuessel
Feb 23, 2016 02:39 PM
Wayne, the story was not about the Constitution. You are correct. But, the story’s point boils down do jurisdiction. The state officers make a claim that these federal officers do not have jurisdiction in their county’s. The federal officers claim they do. Boom. We’re now down to a Constitutional debate which focuses primarily on is the federal government limited by the Constitution and acting currently operating outside of their prescribed power sphere or does the Constitution actually authorize these incursions into the states sphere of influence? And, that is why all the back and forth between states versus federal power. And that’s where it stands.
Lee Bailey
Lee Bailey
Feb 23, 2016 09:07 PM
I believe the Constitution was written for each man to easily understand it's precepts. I appreciate the discourse, and in particular the amount of historical information presented by Gregg. The framers intent was to limit a powerful centralized government. However, that is precisely what our Federal government has evolved into.
Thomas Arvensis
Thomas Arvensis
Feb 23, 2016 10:04 PM
Wayne, this has been a great education discussion until you started baiting a racial issue. I encourage you to drop your racist tendencies and feel free to add something constructive to the conversation. I'm sick and tired of the unadulterated nonsense regarding race - we are all the same despite your false sense of superiority.
Carrie McDermott
Carrie McDermott
Mar 20, 2016 01:11 AM
Comments still open? Ok...Wayne Hare, you nailed it! The entire premise behind the sagebrush rebellion...the shovel brigade in Jarbidge NV, the bucket brigade in Klamath Falls OR, ATV's destroying archaeological sites in Recapture Canyon in Utah, the Bundy Ranch standoff, the Malheur Refuge occupation, all attract the same element: Angry, uneducated, rural, whites who wrap themselves in the flag and cling to their Second Ammendment rights above all else. Much of their argument, quoting or misquoting the constitution, sounds a lot like the Soveriegn Citizen movement, blathering on and on and on, hoping for that magical arrangement of words to win their case. I believe that most Americans do not wake up every morning thinking and worrying about the constitution, but do worry when a few heavily armed militia types, made up of angry white ranchers, white supremists, white meth users and other self-proclaimed white patriots, want to take away our public land. And yes, it is always extreme right wing whites, wrapped in the flag, and always they have nothing but derision for our black President, science and the environment.
Steve Snyder
Steve Snyder Subscriber
Mar 20, 2016 09:49 AM
You know, if the "Constitutional sheriff" movement backers realized that, a century and more ago, part of why sheriffs were elected is that >>they were the local tax collectors,<< they'd probably sing a new tune, all of a sudden.
Robert Riversong
Robert Riversong
Mar 22, 2016 07:24 AM
While the Shire-Reeve was the law-enforcement agent of the English Kings and nobility tasked with collecting taxes from the serfs, the modern sheriff is not mentioned in the US Constitution.

It was a tradition brought to the Virginia colony in 1651, but quickly superseded by the US Marshalls, appointed by President Washington in 1790. In 1823, the Texas Rangers became the first state police force, soon followed by other states.

The sheriff's oath of office is identical to that of every other local, state or federal official: swearing allegiance to both the state and federal constitutions.

So called "constitutional sheriffs" are anti-constitutional seditionists and should be arrested and tried when they refuse to uphold the law or stand against federal officials.
Steve Snyder
Steve Snyder Subscriber
Mar 22, 2016 07:45 AM
Oh, totally agreed, Robert. I was just pointing out the tax angle since many of the seditiionist types don't want to pay taxes period, whether federal, state, or local.