Three days ago, a group of armed individuals took occupation of the United States Fish and Wildlife Service's Malheur National Wildlife Refuge, a federal building in remote Oregon. They did so on behalf of fellow ranchers who recently turned themselves in for setting fire to federal land. In both traditional and social media, a national debate has emerged as to how the government should address this situation, and whether those involved are protesters, occupiers, terrorists, insurgents, or a militia. While these are important discussions, at the heart of the matter is an invocation of the U.S. Constitution which has largely been overlooked.
Cliven Bundy, one of the individuals, has argued, “The United States Justice Department has NO jurisdiction or authority within the State of Oregon, County of Harney over this type of ranch management. These lands are not under U.S. treaties or commerce, they are not article 4 territories, and Congress does not have unlimited power.” Thus, Bundy and the others view the federal government’s ownership of the land as unconstitutional. As such, they have now labeled themselves Citizens for Constitutional Freedom.
The relevant clause in Article IV of the Constitution that Bundy referenced reads, “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…” Bundy proffered no further explanation as to why the refuge does not fall under this language. Regardless, the acquisition of control of federal land within states has long been settled in Supreme Court cases such as Hutchings v. Low, 82 US 77 (1872) (affirming the constitutionality of Yosemite National Park) and Alabama v. Texas, 347 US 272 (1954) (“The power over the public land thus entrusted to Congress is without limitations. And it is not for the courts to say how that trust shall be administered. That is for Congress to determine.”). Supreme Court decisions are law, which only can be overturned by later Supreme Court rulings or constitutional amendments, not by armed occupation.
As such, allow me to suggest an alternative label for the “Citizens for Constitutional Freedom”: criminals. Under 25 CFR 11.411 a person is liable for criminal trespass if he or she “knowing that he or she is not licensed or privileged to do so, he or she enters or surreptitiously remains in any building or occupied structure.” The refuge has now been closed, and they remain in the building. Further, they have the aggravating circumstance of possessing firearms within a federal building while committing a crime, as proscribed by 18 U.S.C. §930(b), which could land them up to five years in prison.
In the United States, processes and institutions exist for the redress of grievances. Government structures are of course not always well-functioning, and civil disobedience is a route other Americans have taken in order to initiate structural changes. However, civil disobedience does not come at the end of a gun barrel. It comes willing to accept the punishment and actions of the state as a means to show onlookers the injustice of the law. By being armed, and declaring a willingness “to kill and be killed”, these individuals present a threat to any federal authority who might arrive to lawfully remove the group from the premises.
Ensuring governmental authority remains limited is an important part of American citizenship, but the “Citizens for Constitutional Freedom” would gain more sympathy if they had a credible claim. They treat the Constitution as a legal code, expecting the document to anticipate all governmental actions in 4,543 words. However, John Marshall wrote in McCulloch v. Maryland 17 US 316 (1819) that a Constitution contains the “great outlines” of a legal system. So when we read the document looking for absolutist interpretations, “we must never forget that it is a Constitution we are expounding.”
The Constitution is not a static document, but comes to us through centuries of adjudication and interpretation. Ignoring the text and the path it has taken since 1787 renders one’s interpretation and analysis incomplete. Our political discourse would benefit greatly from more detailed and nuanced discussions around both the strengths and flaws of our foundational legal document. Committing armed trespass while making vague constitutional references injects no such detail or nuance, and only further obfuscates how the Constitution influences our interactions with each other and our government.