Today, the federal government assumes the power to own and regulate about 1 million square miles of land within the United States. Despite this, the writers and ratifiers of the United States Constitution intended for the federal government to administer much less land, and only in certain cases.

Certainly, the sheer volume of land that the federal government maintains power over would be a shock to the founders. Being this the case, it is pertinent to point to the original intentions of those who wrote the Constitution and those who considered it as the definitive basis for the federal government’s boundaries.

Realizing that the legislature, executive office, and judiciary instituted by the proposed plan for government would require physical space, the writers of the Constitution sought to create a special administrative district that could facilitate the presence of the general government:

“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…”

This region of 100 square miles would be acquired through a deliberate grant of the state(s) it would be located in, and Congress would ultimately have to accept the location.

This area of land would be a considered as a special administrative district, guided by exclusive congressional legislation, and would be inferior in stature as compared to the state governments. This was because all of the states considering ratification of the document possessed republican governments that preceded the existence of the forthcoming general government. As such, they were considered as sovereign entities that would continue to possess all authority they did not delegate. In contrast, the capitol of the United States would be guided by the regulatory laws of Congress.

This provision was not especially controversial in the Philadelphia Convention, but George Mason of Virginia did propose that the seat of the general government should not reside in the same city as the capitol of any state government. Mason reasoned that positioning the seat of government in the same location as a state capitol would create disputes concerning jurisdiction between that state and the general government.[1] Mason received some support from several others, including Alexander Martin of North Carolina, John Langdon of New Hampshire, and Charles Pinckney of South Carolina. Furthermore, Pierce Butler of South Carolina wished to include a stipulation that fixated the seat of the government at a specific location in the Constitution itself.[2] Neither proposal was ultimately incorporated into the finalized Constitution.

Even with the requirement of state land concession, Rufus King of Massachusetts thought it would be inconvenient to allow Congress to change the location of the capitol at will. Joined by James Madison, he proposed that the Constitution require a law to be passed to remove the current location as well. Still, Madison’s notes reflect that some were apprehensive that this addition would cause government functions to be “continued at an improper place if a law should be made necessary to a removal.” The convention made a contentious decision not to adopt King’s proposal, and the seat of government could be changed in the finalized Constitution by the will of the legislature and state(s) involved in relinquishment of land.[3]

In several state ratification conventions, federal control over exclusive regulatory power over the seat of government spurred considerable debate. In New York’s ratification convention, Thomas Tredwell considered the area of 100 square miles to be far too large, and said the power was destined to create a “political hive, where all the drones in the society are to be collected to feed on the honey of the land.”[4]

In Virginia, the provision raised the ire of Patrick Henry and George Mason. Henry expressed the following trepidation:

“If Congress were vested with supreme power of legislation, paramount to the constitution and laws of the states, the dangers he had described might happen; for that Congress would not be confined to the enumerated powers.”[5]

Henry feared that the general government would use this power to violate the enumerated powers doctrine by going venturing beyond the authority the states delegated. For instance, if the federal government acted to violate the freedom of press, Henry cautioned that there would be nothing to prohibit it. Mason agreed with the concern, remarking that “there were few clauses in the Constitution so dangerous” as this one.[6]

In response, George Nicholas countered that “no state would consent to injure itself,” and that the states ceding this area would have to do so voluntarily. Adding to this, Edmund Pendleton explained:

“If they should be about to pass a law in consequence of this clause, they must pursue some of the delegated powers, but can by no means depart from them, or arrogate any new powers; for the plain language of the clause is, to give them power to pass laws in order to give effect to the delegated powers.”[7]

Therefore, Congress could not depart from the enumerated powers to exercise authority outside of what the states had delegated. The existence of administrative regions did not allow the general government to circumvent their intended sphere of power, and Congress could not constitutionally exercise the type of power Henry and Mason warned of.

After ratification, New York City remained the original seat of government, a holdover from the Articles of Confederation. Although the decision was relatively contentious, the First Congress used its constitutional authority to change the location of the general government to Philadelphia in 1790. Philadelphia would remain the temporary capitol for a period of ten years, and the same act instituted a new capitol to be built along the Potomac River to replace Philadelphia.

The writers of the Constitution also intended for the general government to maintain authority over another class of lands which would serve a difference purpose than the capitol:

“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…”

Permission for authority over federal forts, magazines, arsenals, and dockyards would also have to be ascertained through consent of the state governments they would be located in.

In a prominent essay opposing the Constitution, “A Federal Farmer” apprehended the power of exclusive legislation over the ceded lands. He conceded that “congress cannot have them unless the state legislatures cede them,” but warned that once they were ceded, they could never be recovered.[8] However, James Madison refuted this position in the Virginia:

“The states may settle the terms of the cession. The states may make what stipulation they please in it, and, if they apprehend any danger, they may refuse it altogether.”[9]

Therefore, Madison made it clear that the state government could rescind its cession of lands as a sovereign act, and a state’s previous consent could be reversed.

In the contemporary, the federal government has assumed for itself sole authority to possess and make regulations for lands within states that are beyond the purpose originally intended by the founders. Going outside of the intended scope of this power, the federal government now functions as the sole proprietor over many forests, mineral fields, plains, oil fields, and national parks. Most of this land is in the west, where the federal government controls regions that constitute the majority of some western states. Almost all land in Nevada and Utah is federal land. According to a 2014 Congressional Research Service report, the federal government claims ownership over about 28% percent of the total United States landmass.[10]

The federal government alleges to wield this power based on the authority to make rules and regulations over territories, despite the clear delineation in the Constitution between territories and states. Territories and states are distinctly different entities, and the federal government was not intended to have the same regulatory power over regions within states themselves. Originally envisioned as an agent of the states, the federal government was never intended to possess more landmass than the union’s largest state.

REFERENCES

[1] James Madison, Notes of the Debates in the Federal Convention of 1787 (New York: W.W. Norton & Company, 1987), 378.

[2] Ibid, 379.

[3] Ibid, 434-435.

[4] The Debates in the Several State Conventions on the Adoption of the Federal Constitution, Volume II, Edited by Jonathan Elliot (Washington: Taylor & Maury, 1861), 376.

[5] Ibid, Volume III, 406.

[6] Ibid, 399.

[7] Ibid, 407.

[8] Federal Farmer XVIII, in The Complete Anti-Federalist, Volume 1, Edited by Herbert Storing (Chicago: University of Chicago Press, 1981), 345.

[9] The Debates in the Several State Conventions on the Adoption of the Federal Constitution, Volume III, 400.

[10] “Federal Land Ownership: Overview and Data,” Congressional Research Service, February 2, 2016; available at: https://fas.org/sgp/crs/misc/R42346.pdf

Dave Benner [website] speaks and writes on topics related to the United States Constitution, founding principles, and the early republic. Dave is also the author of Compact of the Republic: The League of States and the Constitution. See his blog archive here and his article archive here.

Concordia res parvae crescunt
Small things grow great by concord...

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