National Parks and the Troubles with Unmitigated Textualism
We covered McCulloch v. Maryland in class today. I asked students to identify a Congressional act that would not be explicitly prohibited by the Constitution (such as a bill of attainder) but that would nonetheless be unconstitutional under Chief Justice Marshall’s exposition of the necessary and proper clause. One student, critical of modern application of Chief Justice Marshall’s ruling, suggested that there was in fact no authority in the Constitution to create national parks. I believe at that point I asked the student whether he thought Yellowstone National Park was unconstitutional, that being the first park that came into my mind and the first national park (although created in the Ulysses Grant administration and not that of Teddy Roosevelt, as I mistakenly surmised). The student said that Yellowstone, along with a lot of other federal activity, was unjustified even under Marshall’s expansive view of the necessary and proper clause.
Never having thought about the issue, I thought I would look into it further. Turns out, Yellowstone was declared a national park by an Act to set apart a certain tract of land lying near the Head-waters of the Yellowstone River as a public park. The Act set aside the land from what was then the Territories of Wyoming and Montana. And Article IV, section 3 of the Constitution says “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.” So, perhaps that is good enough for Yellowstone, though one wonders (a) could Congress do anything not expressly prohibited with its territories and other properties and (b) where exactly in the Constitution did Congress get the right to acquire these territories anyway? I can’t find anything in the Constitution that literally gives that power to Congress; it certainly doesn’t give it explicitly to the President, a point not lost on anti-federalist Thomas Jefferson or his cabinet as they negotiated the Louisiana Purchase. (For a 308 page! law review article on this topic — and others — see Sarah H Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power Over Foreign Affairs, 81 Tex. L. Rev. 1 (2002)). On the other hand, how could Congress make rules for territories if the United States did not have the right to acquire them?
But all this discussion of territories, although it does raise a problem with being a textual purist, is but prelude to my discussion of the main thrust of my student’s comment: implied federal powers under the Constitution. Because, while perhaps Yellowstone can be dealt with as an instance of creation of a park within a federal territory, there are plenty of parks that were created within state boundaries. Rocky Mountain National Park, for example, was created within the State of Colorado in 1915. The legislation “reserves” it and withdraws it from “settlement, occupancy or disposal” and dedicates it as a public park. How could the United States acquire this land? Looks like — I’m not sure about this at all — but the area now comprising Colorado at the time of its admission to the union in 1876 had lots of “unappropriated public lands.” And when it joined the union, part of the deal was that Colorado would “forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States.”
So, I guess the United States got the property within the Rocky Mountain National Park, or at least most of it, as part of the statehood act. But that just places a legal veneer on the conveyancing. If one believes that all federal or Congressional actions have to be rooted in the text of the Constitution, the question remains, what Constitutional provision explicitly justifies ownership of the land? Congress apparently could not, for example, as a condition of admission to the Union, require a state to move its capital. Coyle v. Smith, 221 U.S. 559 (1911).
I take it there are at least three possible answers. The first, advanced by the student, was that there is no provision, not even an implied provision. A problem with this response is that it kind of denies history. We do have national parks. Nice ones. I like them. What are we supposed to do about an alleged long-standing Constitutional violations? Wink? Invent constitutional doctrines to justify them? And, if it were just national parks that fell into this category, perhaps it wouldn’t be so bad, but my suspicion is that, on close examination, there will prove to be others that are difficult to square with the literal language of the Constitution. What does the textual purist do with long-standing mistake on which there has been a century of economic and cultural reliance?
The second answer is that establishing a national park is “necessary and proper” — but necessary and proper to what? The textual purist can not help but notice that the Constitution reads “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 … ” So, if “foregoing” means the other stuff listed in Article I Section 8 and the “all other Powers” means the stuff scattered around the Constitution such as Congress’ right to create “inferior Courts” pursuant to Article III, what is the “forgoing” or “other power” to which the ownership of national parks is necessary and proper? Interstate commerce? That’s a pretty big stretch? Necessary and proper to the making of “all needful Rules and Regulations respecting Property belonging to the United States.” Better, though that latter alternative begs the question a bit of how the United States gets property in the first place.
The third is that the premise of textual rooting is incomplete, that there are indeed powers of Congress that need not be found explicitly in the Constitution but that just make darned good sense. Maybe this is what Chief Justice Marshall meant in his famous though I think cryptic remark, “we must never forget that it is a constitution we are expounding.” The problem with this argument/lame excuse, of course, is that one person’s good sense is another’s folly and one idea behind this Constitution was to prevent the central government and its courts from being the arbiter of which was which.
Maybe there is a fourth and better answer? Wisdom?
January 31, 2009 at 3:31 am
Article IV. §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.
February 2, 2009 at 8:40 pm
Dr. Spiers’ remarks, although very applicable to the ability of Congress to create national parks from land it owns, still does not answer the question of constitutional basis for acquisition of property by the United States. It seems that there could be a question of interpretation as well. What is the meaning of the “territory or other property belonging to the United States” (Article IV. § 3)? Does this mean land directly owned by the United States Government or land merely part of the nation but owned by states and/or individuals?
February 3, 2009 at 8:53 am
Perhaps a fourth, albeit not necessarily “better,” answer lies in Congress’ power to spend money to provide for the “general Welfare of the United States” (Article I, Section 8, Clause 1). Although some may consider national parks to be confined to a particular spot and may consider them to be “localized” issues within states and not of the federal government, most national parks were founded to serve the nation and future in general. I remember learning about the conservationist Teddy Roosevelt in my 8th-grade US history course and his philosophy/purpose behind setting aside vast nature preserves throughout the US. Much of the guiding purpose behind his efforts came from his desire to preserve national sites of scientific interest for future generations. Teddy was also alarmed at the urbanization rate of the US as it raced into the 20th Century. Being an avid outdoorsman himself, Teddy feared that future generations would be weak, wimpy if they were not exposed to the great outdoors. He saw national parks as a way of preserving America’s pioneering spirit and ensuring that future generations had the same toughness/ruggedness of their ancestors.
So, perhaps an argument can be made (or could have been made in Teddy’s era) for national parks serving the general welfare of the country. What is more, the environmental realities of today are becoming more an more convincing that natural wildlife reserves are necessary for the preservation of ecosystems and are making us aware of the extremely delicate balance between man and nature.
February 4, 2009 at 3:02 am
THE GENERAL WELFARE CLAUSE DOES NOT GRANT AN INDEPENDENT POWER. It only qualifies the powers listed in Article I, Section 8. As explained in the Federalist papers, it would not have made any sense to list specific powers if the Congress were empowered to tax and spend for the general welfare, because all those listed powers would be included in this general power (just search an online version of the Federalist for “general welfare” to find this discussion). The effect of the clause, if only it were enforced, is, for example, to make pork spending like the infamous “bridge to nowhere” blatantly unconstitutional.
February 4, 2009 at 4:05 am
A review of US Supreme Court decisions seems to shows the constitutional authority for national parks does reside in Article IV.
An excellent, reader friendly discussion is found here (and even downloaded :
http://ncseonline.org/nle/crsreports/risk/rsk-50.cfm
in a publication entitled:
RL34267
Federal Land Ownership: Constitutional Authority and the History of Acquisition, Disposal, and Retention
December 03, 2007.
But the Supreme Court addressed it in , for example, Honchok v. hardin, a case about mineral rights:
Honchok v. Hardin, 326 F. Supp. 988, 992 (D. Md. 1971), citing Alabama v. Texas as well as other cases, where the court held:
“The disposition of minerals in lands owned by the United States is by express constitutional grant the responsibility of Congress. Art. 4, § 3, cl. 2 of the Constitution. In Alabama v. Texas, 347 U.S. 272, 74 S. Ct. 481, 98 L. Ed. 689 (1954), [**9] the Court said:
HN3″* * * The power of Congress to dispose of any kind of property belonging to the United States ‘is vested in Congress without limitation.’ United States v. Midwest Oil Company, 236 U.S. 459, 474 [35 S. Ct. 309, 59 L. Ed. 673]: ‘For it must be borne in mind that Congress not only has a legislative power over the public domain, but it also exercises the powers of the proprietor therein. Congress “may deal with such lands precisely as a private individual may deal with his farming property. It may sell or withhold them from sale.” Camfield v. United States, 167 U.S. [518] 524 [17 S. Ct. 864, 42 L. Ed. 260]; Light v. United States, 220 U.S. [523] 536 [31 S. Ct. 485, 55 L. Ed. 570]‘; United States v. San Francisco, 310 U.S. 16, 29-30 [60 S. Ct. 749, 84 L. Ed. 1050];
‘Article 4, § 3, Cl. 2 of the Constitution provides that “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory and other Property belonging to the United States.” The power over the public land thus entrusted to Congress is without limitations. “And it is not for the courts to say how that trust shall be administered. That is for [**10] Congress to determine.”‘ United States v. California, 332 U.S. 19, 27 [67 S. Ct. 1658, 91 L. Ed. 1889] * *.” 347 U.S. at 273, 74 S. Ct. at 481. 4″
February 4, 2009 at 4:19 am
Oh, and as to how the US got all the land for the parks, the “Federal Land Ownership” article above addresses that right off – the colonies ceded their western lands to the Federal governments, then (in a move some deemed hypocritical “Jefferson completed the Louisiana Purchase, various treaties added more land (TEXAS!) and so forth until the purchase of Alaska completed the USA’s acquisition of around 1.8 Billion acres.