Nevada, You Have a Problem!

Nevada_State_CapitolNevada, you have a problem.

Many have framed the standoff between Nevada rancher Cliven Bundy and the Federal Bureau of Land Management as a “states’ rights” issue. Consider this summary by CBS News.

“The fight between Bundy and the Bureau of Land Management widened into a debate about states’ rights and federal land-use policy. Bundy does not recognize federal authority on land he insists belongs to Nevada.”

The issue of federal land ownership and regulation raises many constitutional questions. (You can read more on the issue HERE and HERE.) But Nevadans have a far bigger problem to worry about. The Nevada state constitution completely submits the state to federal authority.

In other words, Nevadans can’t claim state sovereignty to defy unconstitutional federal actions. They signed it away in their constitution.

“Sec:2. Purpose of government; paramount allegiance to United States. All political power is inherent in the people[.] Government is instituted for the protection, security and benefit of the people; and they have the right to alter or reform the same whenever the public good may require it. But the Paramount Allegiance of every citizen is due to the Federal Government in the exercise of all its Constitutional powers as the same have been or may be defined by the Supreme Court of the United States; and no power exists in the people of this or any other State of the Federal Union to dissolve their connection therewith or perform any act tending to impair[,] subvert, or resist the Supreme Authority of the government of the United States. The Constitution of the United States confers full power on the Federal Government to maintain and Perpetuate its existance [existence], and whensoever any portion of the States, or people thereof attempt to secede from the Federal Union, or forcibly resist the Execution of its laws, the Federal Government may, by warrant of the Constitution, employ armed force in compelling obedience to its Authority.”

Within the American constitutional structure, states have the authority to resist unconstitutional acts because they don’t constitute legitimate “law.” Thomas Jefferson made the case succinctly in the Kentucky Resolutions of 1798.

“Whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.”

As sovereign political societies that only delegated certain, specific powers to the federal government, states can ignore or resist unconstitutional federal acts. James Madison laid out the blueprint in Federalist 46.

But the Nevada constitution gives up the state’s right to determine in the last resort the powers delegated to the federal government and hands it to the Supreme Court. If five of the nine federal employees staffing the Court deem something constitutional, that settles the matter under Nevada law.

Consider this: during the fugitive slave era, nearly every northern state appealed to its sovereignty to oppose and resist the draconian Fugitive Slave Act of 1850.  But under the current state constitution, Nevadans could not have legitimately resisted through their state legislature.  Nevada lawmakers could never have passed personal liberty laws to protect the rights of its black citizens. Every federal act reigns supreme in Nevada until the SCOTUS strikes it down.

Simply put the Nevada constitution makes it illegal to resist an illegal federal act.  Nevadans have essentially bound themselves to submit to any federal usurpation. An unconstitutional act, while null, void and unenforceable, will be recognized and enforce in the state of Nevada.

I’m not calling the actions of those opposing the feds in Nevada “wrong.” I will always stand on the side of those who stand up against injustice. But when Bundy’s supporters make their case based on state sovereignty and the U.S. Constitution, they don’t have a leg to stand on.

State constitutions matter.

Nevadans have a bigger problem than the BLM. They must reclaim their state sovereignty by amending the state constitution. That will empower them to harness the power of the state to resist federal usurpation. As it stands, Nevadans fighting for freedom must not only battle Washington D.C., they must also fight Carson City.

7 Responses to “Nevada, You Have a Problem!”

  1. AshtonApril 16, 2014 at 7:30 pm #

    Nevada’s constitution is void as it violates the u.S. Constitution and they were annexed by Lincoln. A president does not have that constitutional authority.

    • Michael MaharreyApril 16, 2014 at 9:01 pm #

      I’m not sure what you are talking about here. The Nevada territory was created before Lincoln’s inauguration.

  2. timApril 16, 2014 at 7:36 pm #

    I disagree strongly. In article 1 of the Constitution section 8 clause 17 it very clearly states that the federal government may not own land except for the space for the seat of government, in this case Washington DC, or it may purchase land from the states for the purpose of needs for the US military. For no other purpose may the federal government owned land. Therefore Nevadas Constitution notwithstanding the US Constitution is supreme in every aspect to which it speaks mean in the Nevada Constitution, if it truly does give it slams to the federal government, is not binding because it does not supersede the US Constitution.

    • Michael MaharreyApril 16, 2014 at 8:53 pm #

      Hey Tim,

      I appreciate you commenting.

      I think you misinterpret Art. I Sec. 8:17 a bit. It delegates authority for Congress to “To exercise exclusive Legislation in all Cases” in the federal capital. But it does not imply in any way that the federal government can’t own land for any other purpose. In fact, the United States already owned land ceded by Great Britain after the Revolution before the Constitution was ratified. This was land outside of the boundary of any state – known as the Northwest Territory. It was governed under the Northwest Ordinance and Congress clearly had legislative authority there (although concurrent with the territorial governments. You also have to take into consideration Art. 4 Sec. 3:2

      “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”

      Finally, the Constitution implies the authority to acquire territory, as land acquisition was an incident of treaty power.

      All that said, I agree with you that there are constitutional issues with federal landholding in the west. The federal government was meant to dispose of those lands titled to it once states were created. This is an extremely complex issue, and I don’t pretend to completely understand it. More study is required on my part.

      But you’ve missed the point of the article. Whether the landholding is constitutional or not under the original meaning of the Constitution, Nevada is obligated to submit to the federal interpretation. State officials (legislators, executive agencies including the governor, state courts and sheriffs) are bound proceed on the basis of whatever the federal government says. The only way for state officer to legally defy the feds is if the SCOTUS were to actually rule the landholding unconstitutional. Under current federal law, the land belongs to the feds and under the state constitution, the state must recognize that authority. It matters not whether the federal ruling line up with the Constitution. The federal view trumps all in Nevada. The state have no nullifying authority. In short – under the law of the land in Nevada – FEDERAL INTERPRETATION of the Constitution has supremacy, not the original meaning.

      • Alice Lee MorgenrothApril 17, 2014 at 3:36 am #

        I am reading this all with great curiosity. So how did Harry Reid become able to “make his deals” with the Chinese over this “government owned” land? Is he the Real Estate Agent for the U.S. Government? In all of this something is definitely not right. Harry Reid is NOT the U.S. Government and could not possibly have the “right” to give away lands to an outside & foreign entity. How was/is it “his” to facilitate this land “deal.” Legally that is. He isn’t the government and he doesn’t own any of that land either. Please explain

        • Michael MaharreyApril 17, 2014 at 2:48 pm #

          Good questions. My only explanation is that the government is corrupt.

  3. Dan-DanApril 16, 2014 at 8:55 pm #

    In response to these posts flying around facebook, I have posted this in my group for Liberty Works Radio Network:

    2013 Nevada Revised Statutes
    Chapter 321 – Administration, Control and Transfer of State Lands
    NRS 321.596 – Legislative findings.
    Universal Citation: NV Rev Stat § 321.596 (2013)

    The Legislature finds that:
    1. The State of Nevada has a strong moral claim upon the public land retained by the Federal Government within Nevada s borders because:
    (a) On October 31, 1864, the Territory of Nevada was admitted to statehood on the condition that it forever disclaim all right and title to unappropriated public land within its boundaries;
    (b) From 1850 to 1894, newly admitted states received 2 sections of each township for the benefit of common schools, which in Nevada amounted to 3.9 million acres;
    (c) In 1880 Nevada agreed to exchange its 3.9-million-acre school grant for 2 million acres of its own selection from public land in Nevada held by the Federal Government;
    (d) At the time the exchange was deemed necessary because of an immediate need for public school revenues and because the majority of the original federal land grant for common schools remained unsurveyed and unsold;
    (e) Unlike certain other states, such as New Mexico, Nevada received no land grants from the Federal Government when Nevada was a territory;
    (f) Nevada received no land grants for insane asylums, schools of mines, schools for the blind and deaf and dumb, normal schools, miners hospitals or a governor s residence as did states such as New Mexico; and
    (g) Nevada thus received the least amount of land, 2,572,478 acres, and the smallest percentage of its total area, 3.9 percent, of the land grant states in the Far West admitted after 1864, while states of comparable location and soil, namely Arizona, New Mexico and Utah, received approximately 11 percent of their total area in federal land grants.

    2. The State of Nevada has a legal claim to the public land retained by the Federal Government within Nevada s borders because:
    (a) In the case of the State of Alabama, a renunciation of any claim to unappropriated lands similar to that contained in the ordinance adopted by the Nevada constitutional convention was held by the Supreme Court of the United States to be void and inoperative because it denied to Alabama an equal footing with the original states in Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845);
    (b) The State of Texas, when admitted to the Union in 1845, retained ownership of all unappropriated land within its borders, setting a further precedent which inured to the benefit of all states admitted later on an equal footing ; and
    (c) The Northwest Ordinance of 1787, adopted into the Constitution of the United States by the reference of Article VI to prior engagements of the Confederation, first proclaimed the equal footing doctrine, and the Treaty of Guadalupe Hidalgo, by which the territory including Nevada was acquired from Mexico and which is the supreme law of the land by virtue of Article VI, affirms it expressly as to the new states to be organized therein.

    3. The exercise of broader control by the State of Nevada over the public lands within its borders would be of great public benefit because:
    (a) Federal holdings in the State of Nevada constitute 86.7 percent of the area of the State, and in Esmeralda, Lincoln, Mineral, Nye and White Pine counties the Federal Government controls from 97 to 99 percent of the land;
    (b) Federal jurisdiction over the public domain is shared among 17 federal agencies or departments which adds to problems of proper management of land and disrupts the normal relationship between a state, its residents and its property;
    (c) None of the federal lands in Nevada are taxable and Federal Government activities are extensive and create a tax burden for the private property owners of Nevada who must meet the needs of children of Federal Government employees, as well as provide other public services;
    (d) Under general land laws only 2.1 percent of federal lands in Nevada have moved from federal control to private ownership;
    (e) Federal administration of the retained public lands, which are vital to the livestock and mining industries of the State and essential to meet the recreational and other various uses of its citizens, has been of uneven quality and sometimes arbitrary and capricious; and
    (f) Federal administration of the retained public lands has not been consistent with the public interest of the people of Nevada because the Federal Government has used those lands for armament and nuclear testing thereby rendering many parts of the land unusable and unsuited for other uses and endangering the public health and welfare.

    4. The intent of the framers of the Constitution of the United States was to guarantee to each of the states sovereignty over all matters within its boundaries except for those powers specifically granted to the United States as agent of the states.

    5. The attempted imposition upon the State of Nevada by the Congress of the United States of a requirement in the enabling act that Nevada disclaim all right and title to the unappropriated public lands lying within said territory, as a condition precedent to acceptance of Nevada into the Union, was an act beyond the power of the Congress of the United States and is thus void.

    6. The purported right of ownership and control of the public lands within the State of Nevada by the United States is without foundation and violates the clear intent of the Constitution of the United States.

    7. The exercise of such dominion and control of the public lands within the State of Nevada by the United States works a severe, continuous and debilitating hardship upon the people of the State of Nevada.
    (Added to NRS by 1979, 1362)

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