The Malheur Standoff, rights and reason


By Jamie Stewart /// Staff Writer

Cliven Bundy keeps a copy of the United States Constitution in his pocket. The Nevada rancher, who has become known for his leadership in the Oregon Militia occupation of Malheur National Wildlife Refuge near Burns, Oregon, is a fervent advocate for the restoration of federally owned land to state and private control. He and the other protesters at the refuge have notably cited the Constitution to support their position. Given the high profile and charge surrounding this event, we are forced to stop and consider whether the legal document that lays out our government contains anything whatsoever that endorses the severe measures taken at Malheur by these armed protesters.

The question of constitutional interpretation is a hot one, and it is important to us not only because we can observe its violent repercussions so close to home, but also because it is the substance that fuels our ongoing debates about the Government’s role in State and individual affairs. A many-mouthed outcry against government unconstitutionalism has risen to a volume which almost drowns out other issues, on the floors of congress as well as town halls. We can see this manifested clearly in the relentless criticism of recent presidential executive orders, but it is essential to keep in mind that individuals aren’t always necessarily meant to take the constitution under their own scrutiny and draw their own conclusions. It is a complicated legal document, and we have created special committees whose highest function is to make sense of it, most notably the Supreme Court.  

It is the duty then, for those of us who are not currently serving on the bench to pay special attention to a group who claims to be fighters for the people, to be taking a stance against oppression by the government, and to be preserving the freedoms guaranteed by the Constitution.

Conservative interpreters of the Constitution, particularly those concerned with federal land ownership, place their justifications in the Fifth, Tenth and Fourteenth Amendments (known for their clauses favoring states rights over federal control). The Fifth Amendment disallows “private property [to] be taken for public use without just compensation.” The Fourteenth does not permit that “any State deprive any person of life liberty or property without due process of law.” These may provide sound arguments for a dispute of some specific Federal land acquisitions, but only against the manner in which they were acquired. The question of the Government giving up its land holdings is entirely separate. The tenth amendment states: “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.” Using this ammendment to make a blanket statement that all federal land holdings are unconstitutional becomes problematic for the protestors. In fact, the power to regulate, “Territory or other property belonging to the United States” is given to Congress in Article 4, section 3. So to say the federal government should release pieces of land to the States and the people because it has no right to maintain or regulate them is to be misinformed or to commit an act of selective reading.

The real question the protesters bring to our attention is one of private property rights, and how they are implemented in our country. Cliven Bundy’s position is one of finder’s keepers. He has been quoted in the New York Times, saying that ancestral claims to ranch lands have established a “beneficial use of a renewable resource from which rights are created.”

He continues by saying, “Now we have created them and we use them, make beneficial use of them, and then we protect them. And that’s sort of a natural law, and that’s what the rancher has done.”

This view finds some of its origins in John Locke’s “good use” theory of private property, which defines good or “beneficial” use of land as an individual using it such that its resources are conserved with plenty left for others. Any individual using the land in this way is thereby entitled to it. Perhaps the Bundy’s are not wrong in basing their thinking on this view, in fact some water rights laws in the Western U.S. operate by this very principle, but they go too far in trying to convince us that they are using the land conservatively. Not only are ranchers known for being poor environmental stewards, when they turn against federal land holdings they put many people who are not ranchers at a disadvantage. Yes, ranchers are important to agriculture, and need large tracts of land for their industry, but so do highways, dams, bridges, military bases, and the many other things that everyone benefits from that our government provides. I don’t even have to mention the fact that seizing a national wildlife refuge is taking away from everyone who profits from nature (quite a few of us) and who would like to see natural lands and habitats survive this century.

What’s more, if the Bundy’s ancestors “laid claim” by virtue of discovery to land that is now in the hands of the government, do they have a right to complain? If we define rightful ownership in terms of who possessed the land first and made good conservative use of it, how can Native Peoples be ignored? Not only was their land use more conservative than any rancher’s ever has been, they were evicted by white settlers, some of whom were probably drooling over the land’s cattle-raising potential. It doesn’t sound like everyone wins in that situation. If we are to have a no-nonsense discussion of egalitarian private property rights and the Constitution, we will have to start from somewhere else than hypocrisy and tyranny.

Also, it is patently obvious that militant occupation the guns-blazing, all-out-war strategy that has earned these particular protestors the epithets of “Terrorists” and “Rebels” is not the way to accomplish anything within reasonable boundaries of citizen-government interchange. Our democracy is founded on the rational exchange of ideas between an informed citizen body and their representatives in government. If we need to see a change in our private property laws, the place for that to happen is Capitol Hill, the White House, or the Supreme Court not the battlefield.

But what does the fact that the Bundy’s and their ilk tried to take matters into their own hands tell us? We should look at this event not in terms of an escalating discontent with government power, or an attempt to return to foundational constitutional principles, but as the latest installment in a paranoia creeping into a broad range social and political issues alike. The lack of well-articulated information is turning most of our issues into blurry, fear-tainted culture wars. Fear of gun legislation that would “take away” dearly beloved firearms, fear of foreigners presumed dangerous on indefensible grounds of religion or race; fear of losing the nebulous “Old, Great America.” It is time to wake up to the fact that no society is great who relies on violence to accomplish political goals, who believes a narrow sector of the population is entitled to things which others are not, and who places no trust in the peaceful democratic principles that have proved their worth through tumultuous generations. It is time to revive a reasonable exchange of ideas; it is time to make America great again for the right reasons.

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