The firstsecond, and third installments in this series explained that the Constitution created a small and frugal federal government. Those installments discussed how President Franklin D. Roosevelt’s New Deal tested constitutional limits in the 1930s, how the Supreme Court initially tried to balance the New Deal against the Constitution, and how the court finally stopped enforcing constitutional limits on Congress’s power to spend.

This fourth installment relates how the president started to “pack the court” with New Deal activists and how the justices destroyed the Constitution’s limits on federal land ownership.

Roosevelt failed in his famous effort to “pack the court” by expanding its size, partly because Chief Justice Charles Evans Hughes politically outmaneuvered him. However, FDR was able to achieve his ultimate goals by nominating replacements for retiring justices. He didn’t nominate seasoned jurists. In fact, with one exception, none of his nominees had ever served full-time as a judge. Instead, he chose New Deal activists—including a few of undoubted talent—willing to sacrifice the Constitution for the sake of the liberal agenda.

The retirement of Willis Van Devanter in the spring of 1937 created the president’s first appointment opportunity. He chose Sen. Hugo Black of Alabama, presumably as a reward for Black’s support for the New Deal. The appointment certainly wasn’t based on merit: Black’s only judicial experience was two years as a part-time city court judge.

Black was still on the bench when I was in law school. Our liberal faculty members portrayed him as a lovable, crusty, old man with an idiosyncratic theory of First Amendment free speech. They didn’t discuss Black’s early years on the bench, when he freely invented reasons why Congress and the administration could do anything they wanted to.

A good illustration is Black’s concurring opinion in the 1939 case of Coleman v. Miller (pdf). In that opinion, Black claimed—disregarding both history and constitutional text—that Congress had “exclusive power” over the entire constitutional amendment procedure. According to Black’s hypothesis, Congress could do anything it wished with the procedure, and the courts had no way of responding. Obviously, if this notion had prevailed, Congress would have become omnipotent, altering the Constitution almost at will. Black actually persuaded three of his colleagues to sign onto this absurd opinion.

Fortunately, Chief Justice Hughes had better sense. His decision for the court charted a much more moderate course. In subsequent years Hughes has been vindicated, as judges at all levels have soundly and unanimously adopted his view and rejected Black’s.

In early 1938, FDR nominated his Solicitor General, Stanley Reed, to replace the retiring George Sutherland. Like Black, Reed proved to be a reliable member of the “the feds are all-powerful” school of constitutional thought.

1938: The Court Destroys Restraints on Federal Property Ownership

Roosevelt’s appointment of Reed paid off almost immediately, when Reed wrote an opinion for the court dismantling the Constitution’s restraints on federal land ownership.

Power over land is power over people. When government acquires or retains land, the liberal media say the government is “conserving” or “preserving” it. But those are euphemisms. What government ownership usually means is that the power of the bureaucrats is greater and the freedom of the people is less.

The 1787 Constitutional Convention considered allowing the federal government to hold vast tracts of real estate in perpetuity, but rejected the idea. Most of the Constitution’s framers understood that limiting the federal government requires limiting federal land ownership.

The Constitution’s Property Clause (Article IV, Section 3, Clause 2) governs federal land ownership within state boundaries. It grants Congress unqualified authority to dispose of land, but no unqualified power to acquire land.

The Constitution’s Enclave Clause (Article I, Section 8, Clause 17) governs the power to acquire federal jurisdiction over territory within state boundaries.

The document’s text, coupled with its history, shows that the federal government may acquire ownership or jurisdiction over acreage dedicated to one or more of the purposes enumerated (listed) (pdf). But the Constitution grants no authority to acquire parcels merely because the government thinks they would be nice to have. Property acquired in excess of constitutional needs (such as that obtained by international treaty) must be disposed of.

The Enclave Clause thus speaks only of a capital district and “needful Buildings.” As the Constitution uses the word, “Buildings” means improvements of all kinds, not only enclosed structures. However, “Buildings” doesn’t encompass vast tracts of territory. Before 1938, Supreme Court cases on federal enclaves involved areas of limited size dedicated to enumerated purposes. Examples included navigational facilities (included in Congress’s Commerce Power) and military installations. With the exception of the enclave called Washington, D.C., which the Constitution authorizes explicitly, these enclaves were relatively small.

Spanning 748,000 acres, Yosemite National Park isn’t a “needful Building.” It serves no purpose mentioned in the Constitution. Rather, it’s a precious environmental and recreational preserve, and should be protected and managed by a fiduciary trust—or perhaps by the State of California—not by the highly politicized federal government.

Nevertheless, in Collins v. Yosemite Park & Curry Co. (pdf), the Supreme Court ruled that California’s cession of Yosemite to the federal government was valid under the Enclave Clause. Only Justice James McReynolds dissented. Ever since, the court has permitted the feds to own or control land almost without limitation (pdf).

The Practical Costs of the Court’s Decision

Readers without experience in the American West may not appreciate how damaging the Collins decision has been. It ratified the power of federal bureaucrats and politicians over 28 percent of American real estate. This real estate is disproportionately in the West: The feds own well over 80 percent of Nevada, over 60 percent of Alaska, Idaho, and Utah, and more than half of Oregon.

Most of this land has no unique value and there’s no reason for the federal government to own it—other than for political power. Almost everyone agrees that the quality of federal management hasn’t been high.

Additionally, federal land ownership enables the bureaucracy and the special interests that thrive on federal control to manipulate voters and officials within Western states, thereby impeding local self-government and seriously distorting the entire constitutional balance.

This essay is the fourth in a series. It first appeared in the January 26, 2022 Epoch Times.

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

LEARN MORE

01

Featured Articles

On the Constitution, history, the founders, and analysis of current events.

featured articles

02

Tenther Blog and News

Nullification news, quick takes, history, interviews, podcasts and much more.

tenther blog

03

State of the Nullification Movement

108 pages. History, constitutionality, and application today.

get the report

01

Path to Liberty

Our flagship podcast. Michael Boldin on the constitution, history, and strategy for liberty today

path to liberty

02

maharrey minute

The title says it all. Mike Maharrey with a 1 minute take on issues under a 10th Amendment lens. maharrey minute

Tenther Essentials

2-4 minute videos on key Constitutional issues - history, and application today

TENTHER ESSENTIALS

Join TAC, Support Liberty!

Nothing helps us get the job done more than the financial support of our members, from just $2/month!

JOIN TAC

01

The 10th Amendment

History, meaning, and purpose - the "Foundation of the Constitution."

10th Amendment

03

Nullification

Get an overview of the principles, background, and application in history - and today.

nullification