March 30, 2001

The same roots

In recent years, The Federalist has editorialized against restricted resource exploration by “the stroke of a pen,” such as Bill Clinton’s restriction of coal mining in Utah’s Escalante Monument under the obscure Antiquities Act. Recently, we reported on Leftist opposition to President George Bush’s proposals to allow resource exploration on “protected lands,” leading one to ask, “What should a constitutional conservative’s position be on nationalized land and resources?”

We first note, simply, that the root word, “conserve,” from the Latin “conservare,” meaning to keep, guard, observe, is common to both conservative and conservation. To conserve means “to keep in a safe or sound state,” or “to maintain constant during a process of … change.” Central to both conservative politics and conservation policies are tradition and handing down to posterity a country safe and sound in its governing system and its physical state.

In a precise theory of property rights, governments can “own” nothing, as ownership requires direct or indirect use of one’s personal labor, and governments have no labor or exchangeable goods except those taken from their citizens. This relationship is especially so for landed property, as the original title of a just and legitimate property right in that land is established when a person works the land, removing it from its “natural” state. Nevertheless, although our nation has approximated that ideal of property rights more closely than has any other nation, within the rubric of our constitutional order the government is permitted to lay limited claims to property.

The Constitution contains one explicit reference to central government landholdings, in Article IV, Section 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….” Other “public lands” explicitly mentioned as being under congressional control are for forts and military facilities “purchased by the consent of the legislature of the state in which the same shall be” (Article I, Section 8). The 5th Amendment implies that the government through properly drawn legal action may take property, in stating that “no person shall be deprived of … property, without due process of law; nor shall private property be taken for public use without just compensation.” And the 9th and 10th Amendments taken together surely suggest that citizens may authorize states to purchase and maintain lands for the purpose of conservation.

During the early history of our country, lands held within the “public domain” were considered only temporarily lodged in the custody of the national government; the intention was that such land should soon be embedded within the federal system through private acquisition and formation into states that would then enter the union. More recently, though, we’ve seen an inversion of this intent, with the central level of government holding “public lands” apart from any free use by the public.

A brief history of public lands in the United States illustrates the reversal. The original states and territories, acquired by treaty with Great Britain in 1783, comprised 888,685 square miles. The initial continental expansion occurred in 1803, when the Louisiana Territory was purchased from France for $15 million, adding 827,192 square miles to the total. The Federalists at the time opposed the purchase, arguing that the Constitution granted no power for the central government to buy land from a foreign nation. However, President Thomas Jefferson, typically a strict constructionist, championed acquisition of the new territory, later commenting, “I am persuaded no constitution was ever before as well calculated as ours for extensive empire and self-government.” In 1812, Louisiana, the first state formed out of the purchase, was admitted to the union. From that point forward, no serious reservations hindered U.S. territorial expansion across the continent; today the 50 states stretch over 3,623,420 square miles.

The Library of Congress dates the beginning of the American conservation movement around 1850. The Home Department was created within the executive branch in 1849, consolidating operations of the General Land Office and related functions; this later became the Department of the Interior.

“In Wildness, is the preservation of the World,” proclaimed Henry David Thoreau, ushering in a new view of U.S. wilderness lands. In 1864, the Senate authorized a grant of Yosemite Valley to the state of California, as the nation’s first public park. Legislation in 1872 set aside Yellowstone as the first national park. (After complaints about California’s maintenance of Yosemite, these lands were returned to federal control as Yosemite National Park in 1905.)

In the early 1900s, likely the greatest conservationist president, Teddy Roosevelt, stated that private property is “subject to the general right of the community to regulate its use to whatever degree the public welfare may require it.” Whatever degree? This position was perhaps sensible during the age of robber barons, but now “the public welfare” claims of government action themselves know few if any limits.

“Conservation means the greatest good to the greatest number for the longest time,” wrote early environmentalist Gifford Pinchot in 1910. Nearly a hundred years later, the balance has assuredly tipped – “public land” decisions are now made by the few, to benefit the few, contrary to the good of the many.

Indeed, in the midnight hours of his administration, Mr. Clinton unilaterally designated over one million acres off-limits to the public as “national monuments.” And Tom DeWeese, president of the American Policy Center, estimates that when all currently proposed environmental policies are fully implemented, more than 50 percent of the land in the entire United States will be cordoned off not only from private ownership but also from any human activity.

Is there cause to question the validity and usefulness of government holding of land on behalf of the people, in that private ownership might be a superior means of conservation? Yes, and no.

As economist Thomas Sowell notes: “Ironically, what the rich are often praised for is likely to do more harm than what they are condemned for. …Buy up land and donate it for ‘open space’ and an idle heir or heiress will be forgiven for all the money that some ancestor of theirs earned by providing goods and services to millions. …The less land is available to build on, the more people are going to be crowded in the remaining land that is available – and the higher rents are going to be on that land. Should people packed into slums be grateful that the actions of the rich are driving up their rents and preventing them from getting a little elbow room in what the anointed like to call ‘urban sprawl’?”

True conservation, like virtue, pays its own rewards. But most of today’s environmentalism relies on forcible imposition on those who would not otherwise comply – and is intended to set land apart from any activity that would constitute true ownership. And increasingly, environmental policies are determined by international agreements giving sway to globo-utopians.

In our view, it’s unmatched hubris to believe a smattering of elite humans can agree internationally on policies by treaty that will affect the planetary environment – and it’s both evil and unconstitutional to enact takings of U.S. citizens’ property rights in service to such hubris. This is not conservation of our heritage, but instead its destruction.

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