Federal Land Retention and the Constitution's Property Clause: The Original Understanding

52 Pages Posted: 4 Jan 2012

See all articles by Robert G. Natelson

Robert G. Natelson

Independence & Montana Policy Institutes

Date Written: 2005

Abstract

There are two competing theories about the extent to which the U.S. Constitution, as originally understood, authorizes federal landholding. One theory, which is currently Supreme Court doctrine, is that the federal government may own land indefinitely for any purpose. An older theory, still advanced by many, is that federal landholding is legitimate only if the requirements of the Enclave Clause are met. This article examines the history and wording of the clauses of the Constitution pertaining to landholding, and finds that, as originally understood, the Constitution authorized federal ownership of land under both the Property and Enclave Clauses, but only for enumerated purposes. If the Constitution were applied as originally understood, land not held for enumerated purposes would be disposed of in ways that complied with standards of public trust.

Keywords: constitution, federal land, environment, property clause, enclave clause, original understanding, original meaning, original intent

JEL Classification: k1,k10,k19

Suggested Citation

Natelson, Robert G., Federal Land Retention and the Constitution's Property Clause: The Original Understanding (2005). University of Colorado Law Review, Vol. 76, No. 2, p. 327, 2005. Available at SSRN: https://ssrn.com/abstract=1979009

Robert G. Natelson (Contact Author)

Independence & Montana Policy Institutes ( email )

727 E. 16th Ave.
Denver, CO 80203
United States
303-279-6536 (Phone)

HOME PAGE: http://robnatelson.com

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