Federal jurisdiction was for territories, not for the states

David Adler’s opinion piece (Feb. 24) claiming Congress can do anything they want on public lands ignores history and the Constitution. Because they have been acting this way for years doesn’t mean it is constitutional.

The purpose of the Constitution is to limit government and protect rights by delegating specific, enumerated powers to the federal government. The independent, sovereign states retained all others as reiterated in the 10th Amendment.

However, we must read the entire Constitution, not pick out one phrase or clause in isolation. Article 1 authorizes the federal government to exercise jurisdiction within states only in specific cases; only upon property purchased with the consent of the state legislature for specifically listed purposes.

Since they had just won independence from a powerful, overbearing government, the federal jurisdiction and footprint was purposefully limited.

Adler would have us believe the architects of the Constitution went to great lengths to articulate what property the federal government could own and where they could exercise jurisdiction in Article 1, but then subsequently granted the federal government “sweeping” power to regulate public lands within states. This is preposterous.

Although Article IV does grant Congress power to make rules and regulations “respecting the territory or other property belonging to the United States,” it is irrational that this clause would contradict the previously discussed section.

This clause was simply meant to recognize the federal government’s authority over territory prior to statehood. The term “territory” has specific meaning. Before new states were admitted to the union, the land was territory. The federal government exercised exclusive jurisdiction over territory, installed territorial governments and made laws and rules for territory.

However, once territory becomes a state, the federal government is subservient to the state government within the state’s boundaries except for the few, enumerated and delegated powers.

In 1845, the U.S. Supreme Court found in Pollard v Hagen “No principle is more familiar than this, that whilst a state has granted a portion of its sovereign power to the United States, it remains in the enjoyment of all the sovereignty which it has not voluntarily parted with . . . In the Constitution, what power is given to the United States over the subject we are now discussing? In a territory they are sovereign, but when a state is erected a change occurs. A new sovereign comes in.”

There is no other rational way to reconcile these apparently conflicting clauses in the Constitution except as the Supreme Court has pointed out multiple times: the federal government did exercise exclusive authority over territory prior to statehood, but once former territory becomes a state, the state government is the sovereign over everything, except those items specifically enumerated in Article 1.

So, despite Mr. Adler’s revisionist history and Supreme Court allusions attempting to deny states’ authority to manage land within their borders, when viewed in the proper context, most of his arguments actually support this very conclusion.

This story was originally published March 14, 2016 at 7:15 PM with the headline "Federal jurisdiction was for territories, not for the states."