If you have been following the most recent outbreak in the 40-year-old “Sagebrush Rebellion,” you know that Cliven Bundy and his supporters make frequent appeals to “the Constitution” as the guarantor of their right to graze cattle on federal lands.
Indeed, one Bundy sympathizer likened the recent standoff with the Bureau of Land Management to a civics lesson, at which her teenage children were “learning about the Constitution.”
As a student of that document and the arguments that surround it, I can certainly appreciate the rhetorical power of invoking the Founding Fathers and the revolutionary spirit in an effort to garner political support and reshape the law. In this particular case, however, the actual text of the Constitution is of no help to Bundy — in fact, it is one of the primary obstacles to his cause.
That is because it is the Constitution that called into being the very federal government that Bundy now hopes to disempower. And Article IV, Section 3 of that charter gives Congress the “power to dispose of and make all needful rules and regulations respecting the territory or other property of the United States.” The land where Bundy’s cattle graze has fallen under this authority since 1848, when Mexico ceded it to the federal government in the Treaty of Guadalupe Hidalgo, which ended the Mexican-American War. Before statehood, that land was part of a territory, and thereafter it became part of the “other property” that the Nevada Constitution expressly disclaimed to the federal government. Congress regularly required new Western states to adopt these so-called “Disclaimer Clauses” — “forever disclaim[ing] all right and title to the unappropriated public lands lying within said territory, [which] shall be and remain at the sole and entire disposition of the United States” — in order to clear title to potentially disputed tracts and pave the way for redistribution and settlement. The federal government was never under any obligation to redistribute the disclaimed lands, however, and, as Westerners well know, much of it remains in federal ownership to this day.
The plain legal meaning of all this is that the Constitution expressly authorizes Congress to regulate the use and disposition of federal lands. Congress need not, in other words, rely on its controverted power to regulate interstate commerce (or any other indirect authority) to govern the land in question. This explains why the courts have flatly (and repeatedly) rejected Bundy’s mysterious claim of “rights” rooted in the Constitution. Indeed, the most recent judge to review the subject concluded that, “Bundy has produced no valid law or specific facts raising a genuine issue of fact regarding federal ownership or management of public lands in Nevada.” If Bundy could produce any evidence that he has any vested property rights in the contested lands, the issue might be different. But as it currently stands, it is federal property — explicitly made subject to federal regulation by the very Constitution that he and his supporters invoke.
All of this is not to say that the BLM is managing these federal lands well, or that Bundy cannot gather political support in an effort to change federal policy on the desert tortoise or anything else.
There are certainly many in the West who believe that the BLM and other federal agencies have struck an inappropriate balance between conservation concerns and agricultural or mining interests. In fact, earlier manifestations of the Sagebrush Rebellion, particularly during the Reagan presidency, have met with some limited political success. But for Bundy to claim that it is the Constitution that empowers him to ignore or reject an express grant of federal authority … well, to put it simply, that dog just won’t hunt.
Ian Bartrum teaches constitutional law at the William S. Boyd School of Law at UNLV. His teaching and scholarship focus on constitutional history, theory and issues in law and religion.