Utah Governor Signs Law Authorizing Use of Eminent Domain Over Federal Lands

In the latest sign of how American politics has descended into virtual graffiti legislation, the governor of Utah has signed legislation authorizing the state to exercise eminent domain over federal lands. It is clearly unconstitutional but that seems to matter little to legislators or Gov. Gary Herbert who signed the two bills.

What is truly amazing is that the state is setting aside $3 million dollars to litigate the frivolous claims at a time when the state is facing budget shortfalls and other economic problems.

For the full story, click here.

142 thoughts on “Utah Governor Signs Law Authorizing Use of Eminent Domain Over Federal Lands”

  1. Thanks for all of your labor on this blog. My niece take interest in participating in internet research and it’s really easy to see why. Most people hear all concerning the dynamic method you give informative things via this web site and as well boost contribution from website visitors on the concept then our own child is without a doubt starting to learn a great deal. Take pleasure in the remaining portion of the new year. Your performing a powerful job.

  2. What is the point of this?

    Utah did enact a law last year that allows the state to use eminent domain to try to seize federal lands, but has not tried to use that authority. The Governor’s Office may be preparing a lawsuit, but there is no word yet.


    There is no lawsuit and no news.

    Reviewing JT’s article and a lot of posts above,it looks like he is still correct and the lawsuit will fail.

    The powers was expressly delegate by Article IV: “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.”

    The statement that “the only territorial jurisdiction given to the Fed is contained in Art. I, 8, 17.” is incorrect. It ignores the express language in Article IV.

  3. Do your homework. The governor is right and there is no threat, or should be no threat, to personal property because the residue of power remains in the people. Eminent domain is a right of sovereignty, and the bottom line is that the people are the sovereign and retain all rights not delegated to the government. We the people never did delegate eminent domain powers to the government. Only a proprietary interest in the land held in trust for the people. The only legislative authority granted to the Fed is in Art. I, 8, 17. Nothing else. Like A. Hamilton said: (paraphrase) “why declare that something shall not be done, when there is no power to do it.” Former Chief Justice John Marshall said the same thing; “The right never existed, and the question whether it has been surrendered, can not arise.” (M’Cullock vs. Maryland, at p. 431)

    When the States entered the Union, they came in on an “equal footing” with the original 13 States. As far as territorial jurisdiction, the only territorial jurisdiction given to the Fed is contained in Art. I, 8, 17. As a territory, the ‘territory of Utah’ was controlled by the Fed, but once it was admitted to the Union, the Fed lost that control, except over areas listed in Art. I, 8, 17 and none other lands except at the States cede that authority.

    Utah is heading in the right direction, kind of.

  4. I have really news on this.


    I have really bad news on this.

  5. Duh,

    You wanted to know what I thought about that UMKC “faculty project”.

    Too bad for you, I’m going to tell you now.

    “Introduction” – “There are five sources that have guided interpretation of the Constitution: (1) the text and structure of the Constitution, (2) intentions of those who drafted, voted to propose, or voted to ratify the provision in question, (3) prior precedents (usually judicial), (4) the social, political, and economic consequences of alternative interpretations, and (5) natural law. There is general agreement that the first three of these sources are appropriate guides to interpretation, but considerable disagreement as to the relative weight that should be given to the three sources when they point in different directions.”

    No. Not really. Proper analysis goes 1) wording, 2) precedent (our whole system is only based on common law but let’s put that behind . . . ), 3) legislative intent. It is taught this way in every reputable law school. End of story. As to political and social concerns of “alternative interpretation” – a term that simply means “anyone who disagrees with the Originalists/Neocons” – that’s a pantload. Laws are (when not purchased by corporations via K St. graft) a reflection of the social and political will of We the People.

    And “natural law”?

    “Natural law (higher law, God’s law) is now only infrequently suggested as an interpretive guide, even though many of the framers of the Constitution recognized its appropriateness.”

    Appropriateness. Yeah, all the framers thought using God’s law was such a good idea in legal analysis that they incorporated Freedom of Religion into the Bill of Rights coming out of the gate. I laughed so hard I almost hurt myself. God’s law – no matter what you want to call it – is simply a con game made up by men. Always has been. Always will be. But if you like a country run this way, Saudi Arabia could use someone of your obvious talents, duh.

    Next, let’s move on to “the teams” –

    “Persons who favor heavy reliance on originalist sources (text and intentions) are commonly called “originalists.” Persons who favor giving a more substantial weighting to precedent, consequences, or natural law are called “non-originalists.” In practice, disagreement between originalists and non-originalists often concerns whether to apply heightened judicial scrutiny to certain “fundamental rights” that are not explicitly protected in the text of the Constitution.”

    No. People properly trained in law, as I explained above, are trained to look at language, precedent and intent. They are done so because manifest language is always the best source, precedent the second (as it required reasoning to reach a conclusion and enough subsequent use to be valid precedent) and intent lastly as it is often a guessing game (plain and simple). So what this “scholar” Robert Bork has attempted to do is create two teams – one that follows precedent as is the common law tradition and one that will use guesses about intent and semantic arguments in place of the judicial process to make the Constitution say what they want instead of evolving in the sunlight of judicial review in soil tilled by the legislature as our Founding Fathers indeed intended when they set up the triumvirate of powers to balance against each other. What this assertion actually is is a blind for the fact that “orginalists” (like the rogues gallery of originalist judges placed on that site) are universally for LIMITING YOUR RIGHTS versus sane people who want maximum rights as that is an important check on tyranny. “Originalists” just happen to be the same people who’d throw habeas corpus out the window if it suited their needs or their buddy’s needs. “Originalist”? Bullshit. A name made up by Robert Bork to make them sound patriotic when they are in fact anything but.

    Let’s look at the lists if “Why to be an Originalist” versus “Why to be a non-Originalist”.

    “Eight Reasons to be an Originalist
    1. Originalism reduces the likelihood that unelected judges will seize the reigns of power from elected representatives.

    Wrong. Judges do not have unlimited power. It is checked by the legislature who is free to make laws counter to precedent when they can muster the votes. Add to this that it is a review process with multiple levels of appeal further constraining the acts of any bad judges except the bad ones on SCOTUS.

    2. Originalism in the long run better preserves the authority of the Court.

    Wrong. Logical error of begging the question.

    3. Non-originalism allows too much room for judges to impose their own subjective and elitist values. Judges need neutral, objective criteria to make legitimate decisions. The understanding of the framers and ratifiers of a constitutional clause provide those neutral criteria.

    Wrong. Logical error of begging the question. Also judges use neutral objective criteria all the time. They take the cases presented by both sides (inherently not neutral as it is an adversarial process) and render a decision based on the law as it can best be applied to the situation. When the law is silent or the situation is new, this can require new ways for the court to address the conflict absent legislative based solutions. Then and only then do “activist” judges make new law. Why? Because they really hate being overturned on appeal. It hurts their advancement potential.

    4. Lochner vs. New York (widely considered to be a bad non-originalist decision).

    I have really news on this. Yes, this is widely considered a bad decision as it challenged the governmental right to regulate business based on personal rights – that first war cry of fascists everywhere! But since “non-originalist” is a bullshit term, it’s a bullshit assertion. Yes. It is widely considered bad law, but for varying reasons. As displayed here, the Lochner decision actually supports the Neocon “no regulation” agenda. So either this is sloppy scholarship or sloppy propaganda and likely both. This, however, is all moot since the Lochner era ended with West Coast Hotel Co. v. Parrish (1937) and the hounds of fascism have been baying at that collar ever since.

    5. Leaving it to the people to amend their Constitution when need be promotes serious public debate about government and its limitations.

    Okay. Nothing a judge can do can stop this.

    6. Originalism better respects the notion of the Constitution as a binding contract.

    Sophistry and a lie that also begs the question. If contractual terms are the question for “originalists”, or I’ll call them what they really are from now on – idiots, then they should be all over Lochner as the courts reasoning was based on freedom to contract.

    7. If a constitutional amendment passed today, we would expect a court five years from now to ask what we intended to adopt. [Can the same be said for a court 100 or 200 years from now?]

    Utter drivel not worth addressing in any depth other than to note that we have an amendment process exactly because the Constitution in designed to evolve to meet new circumstances as recognized by the people and the subsequent laws enacted by the legislature. This statement is the equivalent of promising a “judicial afterlife” . . . if you’ll just play for their “team”!

    8. Originalism more often forces legislatures to reconsider and possibly repeal or amend their own bad laws, rather than to leave it to the courts to get rid of them.”

    Quaint but wrong. The sheer amount of litigation over all sorts of laws belies this assertion.

    Then there is the list of “Originalist judges”.

    Justice Hugo Black –

    Voted against a right to privacy in Griswold v. Connecticut. That about sums him up.

    Justice Antonin Scalia –

    Satan Himself, a fascist criminal who we should be ashamed holds office in the highest court in the land and a hunting buddy of war criminal in chief, Dick Cheney.

    Justice Clarence Thomas –

    Lap dog for Scalia. Too stupid to be much of a threat on his own.

    Judge Robert Bork –

    Whadya know! The Father of Originalism himself. He’s an pie in the sky idiot and the day he wasn’t confirmed was a small victory for liberty and common law.

    Now let’s look at how the non-Originalists are addressed.

    1. The framers at the Convention in Philadelphia indicated that they did not want their specific intentions to control interpretation.

    That speaks for itself on a truthful rational basis.

    2. No written Constitution can anticipate all the means that government might in the future use to oppress people, so it is sometimes necessary for judges to fill in the gaps.

    Pragmatic fact of life. Things change. Shit happens. Deal with it.

    3. Intentions of framers are various, sometimes transient, and often impossible to determine. Text is often ambiguous and judicial precedents can be found to support either side. In such cases, why not produce the result that will best promote the public good? It’s better than flipping a coin.

    And a damn sight better than substituting a hunting buddy’s desire to torture in place of the 4th Amendment. More pragmatic decision making based on that pesky common welfare concept you Neocons hate so much.

    4. Non-originalism allows judges to head off the crises that could result from the inflexible interpretation of a provision in the Constitution that no longer serves its original purpose. (The amendment process is too difficult and cannot be relied upon to save us.)

    Pragmatic reality again. Deal with it.

    5. Non-originalism allows the Constitution to evolve to match more enlightened understandings on matters such as the equal treatment of blacks, women, and other minorities.

    Unless you just like slavery.

    6. Brown vs Board of Education (on originalist grounds, it was decided incorrectly).

    But on humane and equal protection grounds, it was correctly decided and is still the law. Again, times change and the Constitution was originally designed to accommodate this by the Amendment process and the balance and separation of powers.

    7. Originalists lose sight of the forest because they pay too much attention to trees. The larger purpose–the animating spirit–of the Constitution was the protection of liberty, and we ought to focus on that.

    All I’m going to say is Thomas Jefferson and the Declaration. The Constitution may be the bones of our laws, but the DOI is certainly the spirit of the law. To argue otherwise is merely foolish. The documents go hand in hand historically. To look at the Constitution without considering its direct relative is nonsensical as the Constitution is in part a reaction to the DOI.

    8. Nazi Germany: Originalist German judges did not exercise the power they might have to prevent or slow down inhumane programs.

    A valid point but the wording is pure propaganda. Your incurious and reactionary reader, e.g. propaganda consumers, won’t get past “Nazi Germany” label oh so conveniently placed in front of a colon to suggest lastly but not least that Nazi Germany somehow equates to non-Originalist thought. A scholarly sentence would have read “Originalist German judges did not exercise the power they might have to prevent or slow down inhumane programs of the Nazi regime.” But let’s load the language where you can!

    Let’s look at the list of non-Originalist judges.

    Justice Harry Blackmun –

    Posted as a conservative bookend for Burger, this author of the Roe v. Wade decision steadily moved left over the years after seeing how too much sausage was made. Widely admired by pragmatists.

    Justice William Brennan –

    Great judge by any reasonable standard. Period. A personal favorite.

    Justice William O. Douglas –

    Enemy of Nixon and victim of two attempts to remove him by impeachment, including one led by Nixon’s boy Ford so clumsily later played by a Chevy.

    Judge Richard Posner –

    Mixed bag. His stance on privacy and his work with Bork on anti-trust issues are Neocon crap, but he had enough pragmatist in him that some issues he’s got a good grasp on . . . like originalism.

    “The originalist faces backwards but steals frequent sideways glances at consequences. The pragmatist places the consequences of his decisions in the foreground. The pragmatist judge does not deny that his role in interpreting the Constitution is interpretive. He is not a lawless judge. He does not, in order to do short-sighted justice between the parties, violate the Constitution and his oath, for he is mindful of the systemic consequences of judicial lawlessness. Like Samuel Lipman’s ideal conductor, however, the pragmatist judge believes that constitutional interpretation involves the empathic projection of the judge’s mind and talent into the creative souls of the framers rather than slavish obeisance to the framers’ every metronome marking. In the capacious, forward-looking account of interpretation that I am calling pragmatic, the social consequences of alternative interpretations often are decisive; to the consistent originalist, if there were such a person, they would always be irrelevant.

    In a representative democracy, the fact that many (it need not be most) people do not like the probable consequences of a judge’s judicial philosophy provides permissible, and in any event inevitable, grounds for the people’s representatives to refuse to consent to his appointment, even if popular antipathy to the judge is not grounded in a well-thought-out theory of adjudication. The people are entitled to ask what the benefits to them of originalism would be, and they will find no answers in The Tempting of America. If, to echo Samuel Lipman again, orginalism make bad music despite or perhaps because of its scrupulous historicity, why should the people listen to it?”

    Originalism is simply a rational for fascism and poor scholarship based on the desire to please sycophants by ruling consistently for business and against individual rights (even if their tactics are occasionally disguised as being about individual rights like Lochner). Non-originalism is simply anything that isn’t orginalism and that covers a lot of ground. It’s rigid thought versus flexible thought. Since flexible thought is the very essence of human adaptation and ergo human society maintaining the most flexible stance possible is only logical in a legal system. It should be open and expansive, two things originalism clearly isn’t.

    Personally, and I’ve said this before, I’m an anti-fascist, Jeffersonian Constitutionalist. I construe the Constitution in the light of the DOI with a large dose of pragmatism and I recognize corporations for what they are: a legal fiction and dangerous tool that should be tightly constrained as a shield against liability is essentially a pass on obeying the law.

    And I’ve about had enough of that double standard shit from Washington.

    So thanks for the good laugh.

    It was at your “teams” expense.

  6. The quote is at 4 A.L. R. 560. The following search terms let to that book scan on google books: “4 american law reports United States v. Railroad Bridge Co.” Scroll to pages 560-61.

  7. Duh is right, the site does not want to post the link to google books scan of the ALR treatise. Do a google seearch — it may turn up.

  8. The American Law Reports (ALR) is a legal treatise, a secondary source for the legal principles discussed. The quote is from an “annotation,”, that is, a discussion and analysis of the then recent Utah Power and Light case. The law is in the case, not in the annotation.

    The Railroad Bridge case that is discussed in the quotation is not a controlling case. It was just a circuit case, at a time when Supreme Court Justices were required to sit on lower federal court cases. The Supreme Court itself later questioned it severely, and called the Justice’s remarks an “inadvertance.” It is inconsistent with the holding of the Supreme Court in Utah Power and Light.

    This is just another undigested quotation taken out of context.

  9. The quotation from Justice Field is not from a Supreme Court case. The case was decided by a lower federal court, with Justice McLean sitting as Circuit Justice. It is not the law. Field’s words were later expressly rejected by the Supreme Court in Van Brocklin v. Tennessee 117 U.S. 151:

    QUOTE ON The statement of Mr. Justice McLean, in a case in the circuit court concerning land in Illinois,

    “In the admission of new states into the Union, compacts were entered into with the federal government that they would not tax the lands of the United States,”

    was therefore, as applied to the case before him, an inadvertence, which impairs the weight of his dictum, based upon it, that “this implies that the states had power to tax such land, if unrestrained by compact.” United States v. Railroad Bridge Co., 6 McLean 517, 531-533.

    The question in issue in that case was not of the state’s right of taxation, but of its right of eminent domain for the construction of roads and bridges. The decision of the learned justice in favor of the validity of the exercise of that right by a state over lands of the United States, without the consent of the United States manifested either by an express act of Congress or by the assent of a department or officer vested by law with the power of disposing of lands of the United States appears to have been based upon the theory that the United States can hold land as a private proprietor for other than public objects, and upon a presumption of the acquiescence of Congress in the state’s exercise of the power as tending to increase the value of the lands, and it finds some support in dicta of Mr. Justice Woodbury in a case in which, however, the exercise of the power by the state was adjudged to be unlawful. @ 48 U. S. 194-195. But it can hardly be reconciled with the views expressed by Congress in acts concerning particular railroads too numerous to be cited, as well as in general legislation. Acts August 4, 1852, c. 80, and March 3, 1855, c. 200, 10 Stat. 28, 683; July 26, 1866, c. 262, § 8, 14 Stat. 253; Rev.Stat. § 2477. When that question shall be brought into judgment here, it will require and will receive the careful consideration of the Court. UNQUOTE 117 U. S. AT 162

    In Van Brocklin, the Supreme Court held that property of the United States is exempt by the Constitution of the United States from taxation under the authority of a state.

    QUOTE While the power of taxation is one of vital importance, retained by the states, not abridged by the grant of a similar power to the government of the union, but to be concurrently exercised by the two governments, yet even this power of a state is subordinate to, and may be controlled by, the Constitution of the United States. That Constitution and the laws made in pursuance thereof are supreme. They control the constitutions and laws of the respective states, and cannot be controlled by them. The people of a state give to their government a right of taxing themselves and their property at its discretion. But the means employed by the government of the union are not given by the people of a particular state, but by the people of all the states, and being given by all, for the benefit of all, should be subjected to that government only which belongs to all. All subjects over which the sovereign power of a state extends are objects of taxation, but those over which in does not extend are, upon the soundest principles, exempt from taxation. The sovereignty of a state extends to everything which exists by its own authority, or is introduced by its permission, but does not extend to those means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States. The attempt to use the taxing power of a state on the means employed by the government of the union, in pursuance of the Constitution, is itself an abuse, because it is the usurpation of a power which the people of a single state cannot give. The power to tax involves the power to destroy; the power to destroy may defeat and render useless the power to create, and there is a plain repugnance in conferring on one government a power to control the constitutional measures of another, which other, with respect to those very measures, is declared to be supreme over that which exerts the control. The states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government. Such are the outlines, mostly in his own words, of the grounds of the judgment delivered by Chief Justice Marshall in the great case of McCulloch v. Maryland, in which it was decided that a statute of the State of Maryland imposing a tax upon the issue of bills by banks, could not constitutionally be applied to a branch of the Bank of the United States within that state. 17 U. S. 4 Wheat. 316, 17 U. S. 425-431, 17 U. S. 436.”
    117 U. S. at 156


  10. From the American Law Reports, Volume IV Annotated (I tried to post a link, but twice now everything I typed never appeared)

    The matter received very able consideration in United States v. Railroad Bridge Co. (1855) 6 McLean, 517 Fed. Cas. No. 16,114. Upon this point it is said: “The proprietorship of land in a state by the general government cannot, it would seem, enlarge its sovereignty or restrict the sovereignty of the state. This sovereignty extends to the state, subject only to the proprietary right of the lands owned by the Federal government, and the right to dispose of such lands and protect them under such regulations as it may deem proper. The state organizes its territory into counties and townships, and regulates its process throughout its limits. And in the discharge of the ordinary functions of sovereignty, a state has a right to provide for intercourse between the citizens, commercial and otherwise, in every part of the state, by the establishment of easements, whether they may be common roads, turnpike, plank, or railroads. The kind of easement must depend upon the discretion of the legislature. And this power extends as well over the lands owned by the United States, as to those owned by individuals. This power, it is believed, has been exercised by all the states in which the public lands have been situated. It is a power which belongs to the state, and the exercise of which is essential to the prosperity and advancement of the country. State and county roads have been established and constructed over the public lands in a state under the laws of the state, without any doubt of its power, and with the acquiescence of the Federal government. In this respect the lands of the public have been treated and appropriated by the state as the lands of individuals. These easements have so manifestly conduced to the public interest, that no objection, from any quarter, has hitherto been made. And it is believed that this power belongs to the states.

    “It is difficult to perceive on what principle the mere ownership of land by the general government within a state should prohibit the exercise of the sovereign power of the state in so important a matter as the easements named. In no point of view are these improvements prejudicial to the general interest; on the contrary, they greatly promote it. They encourage population, and increase the value of land. In no respect is the exercise of this power by the state inconsistent with a fair construction of the constitutional power of Congress over the public lands. It does not interfere with the disposition of the lands, and instead of lessening, enhances their value.

    “Where lands are reserved or held by the general government for specified and national purposes, it may be admitted that a state cannot construct an easement which shall, in any degree, affect such purposes injuriously. No one can question the right of the Federal government to select the sites for its forts, arsenals, and other public buildings. The right claimed for the state has no reference to lands specially appropriated, but to those held as general proprietor by the government, whether surveyed or not. The right of eminent domain appertains to a state sovereignty, and it is exercised free from the restraints of the Federal Constitution. The property of individuals is subject to this right, and no reason is perceived why the aggregate property, in a state, of the individuals of the Union, should not also be subject to it. The principle is the same, and the beneficial result to the proprietors is the same, in proportion to their interests. These easements have their source in state power, and do not belong to Federal action. They are necessary for the public at large, and essential to the interests of the people of the state. The power of a state to construct a road necessarily implies the right, not only to appropriate the line of the road, but the materials necessary for its construction and use. Whether we look to principle or the structure of the Federal and state governments, or the uniform practice of the new states, there would seem to be no doubt that a state has the power to construct a public road through the public lands.”

  11. Mespo, thanks, but Duh rapped me for using colorful language, so I had to lawyer it up.

  12. Vince T:

    Clear-headed, concise,and correct. About as much as one can say about good legal analysis. Now, if we could just “purple-up” that prose!

  13. Duh, “I, as a property owner, have the authority to dispose of my property. I can sell it, or I can give it away. Does that authority to dispose of my property prevent the sovereign form condemning it, should it be required to accomplish a necessary public use? We all know it doesn’t.”

    This is a pointless example. It deals with PRIVATE property. The Fifth Amendment says that private property shall not be taken for public use without just compensation. The government can condemn private property even though the private owner has the power to dispose of it, but must pay compensation. Those are not the rules that apply to governmental entities.

    The example has no application to property held by a government. That is the difference.

    The United States is also a sovereign government, recognized by other nations as such. It cannot be sued without its consent. Where is the consent to a suit to condemn its land? The sovereignty of the U.S. is also limited by specific terms of the Constitution. But Duh has pointed to nothing in the Constitution that limits the power of Congress to control federal property.

  14. Duh says: “You are reading into it [Article IV] more than that which is stated. Nothing in that Article excludes the state from exercising the rights of a sovereign.”

    The Supreme Court said otherwise: “To this we cannot assent. Not only does the Constitution (art. 4, 3, cl. 2) commit to Congress the power ‘to dispose of and make all needful rules and regulations respecting’ the lands of the United States, but the settled course of legislation, congressional and state, and repeated decisions of this court, have gone upon the theory that the power of Congress is exclusive, and that only through its exercise in some form can rights in lands belonging to the United States be acquired.”

    What part of the word “exclusive” is unclear? Rights in the land can only be acquired through the exercise of some form of the power of Congress. Congress must act. That is what excludes the states.

    If Utah has a problem, then get a Senator to offer a floor amendment or introduce a bill. That is how it works. I am only reading what is in the clause, and what the Supreme Court has always found there. For 220 years. Duh can take a different reading to court, but it will not fly.

    The Tenth Amendment has no application, because the power to dispose of and to make all needful rules and regulations was one of the powers expressly delegated to the United States, and not reserved to the States. Since it was delegated to the U.S., it cannot by definition be reserved to the states. The folks who incant “Tenth Amendment” like a prayer ought to stop and read it sometime.

    The state is not an absolute sovereign. Duh has not even mentioned the limits on state sovereignty listed above. He has not defined the meaning of his use of the term “sovereignty.”

    Since the State’s powers are limited by the Constitution, especially section 10 of Article I, its sovereignty is limited. A state cannot coin money. It can no more condemn federal property than it can coin Money. One attribute of an absolute sovereign is the power to coin money, but the states are bereft of that power. The sovereignty of the State does not extend to condemnation the property committed to the United States by Article IV, nor to making rules and regulations for it.

    If “sovereignty” is so important to constitutional interpretation, why is it not mentioned in the text of the Constitution?

    The states have a fundamental right to condemn private property. Private. See the Fifth Amendment. The right to condemn federal property held under Article IV is not such a right, and no case has ever held it to be.

    Duh: “Since we all know that Article IV had existed long before 1885, we know that Vince Trweacy’s interpretation of the clause would be in direct conflict with this.”

    Sorry. The existence of Article IV before 1885 is totally irrelevant.

    As described above, the Fort Leavenworth case was decided under Article I, Section 8, not Article IV. Per the syllabus, the act admitting Kansas as a state had no reservation of federal jurisdiction over the Fort Leavenworth Military Reservation. The State of Kansas subsequently ceded to the United States exclusive jurisdiction over the same “saving further to said state the right to tax railroad, bridge, or other corporations, their franchises and property on said reservation.”

    The Court held that the property and franchises of a railroad company within the reservation were liable to pay taxes in the Kansas imposed according to its laws. There was no condemnation of federal property.

    The case is a precedent for a state to tax a railroad on a federal reservation, where the state reserved that right when it ceded the lands to federal government under Article I.

    This is not a precedent for a state to condemn land reserved to the federal government at the time of admission. Period.

    One attribute of double think is the absolute conviction that there is no contradiction between the contradictory ideas, and another is absolute unawareness that there is any contradiction at all.

    That should take care of it for now. If Duh is correct, then the State of Utah should prevail in its lawsuit. If he is incorrect, then Utah will lose.

    I will come back and take a look after Utah’s case is dismissed.

  15. The judge is just wrong. He talks as if the state has already condemned the land. The state has not taken any property yet. It has just decided to file a case that is will lose.

  16. Vince Treacy,

    I think your interpretation of Article IV is flawed, and the opinions of Justices Story and Fields support my position.

    What you have done is to consider the ability to dispose of property (as identified in Article IV, Section 3, Clause 2) as to create something exclusive, and to bar the state from exercising a fundamental right. You are reading into it more than that which is stated. Nothing in that Article excludes the state from exercising the rights of a sovereign. And the Tenth Amendment ensures that the state did not give up that right.

    I, as a property owner, have the authority to dispose of my property. I can sell it, or I can give it away. Does that authority to dispose of my property prevent the sovereign form condemning it, should it be required to accomplish a necessary public use? We all know it doesn’t.

    Since we all know that Article IV had existed long before 1885, we know that Vince Trweacy’s interpretation of the clause would be in direct conflict with this

    “Where lands are acquired without such consent, the possession of the United States, unless political jurisdiction be ceded to them in some other way, is simply that of an ordinary proprietor. The property in that case, unless used as a means to carry out the purposes of the government, is subject to the legislative authority and control of the states equally with the property of private individuals.”
    ~Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525 (1885)

  17. Bdaman:

    sounds like Judge N. is all for Utah doing that. He is a very sharp guy and knows his constitution. Very interesting.

  18. In the beginning of this video, Napolitano says, the state of Utah has just voted and singed into law legislation to condemn, that is, to use eminent domain on property owned by the federal government.

    This is the first time in American history a state has taken property from the federal government against it’s will by paying them for the property.

Comments are closed.