Freedom: An Endangered Species; R. Greenslade

Ming-Lin's company is charged, in a com plaint filed by the U.S. Fish and Wildlife Service, with killing several Tipton Kanga roo rats and destroying the habitat of two other endangered species. Mr. Ming-Lin's crime was plowing 723 acres of scrub land owned by his company in Kern County, California, 150 miles north of Los Angeles. Does the federal government have the constitutional authority to enforce the Act on private land located within a state? To understand the answer to the question, it is first necessary to understand the limi tations of government powers. The federal government derives all legislative power from the Constitution. All powers not specifically enumerated are reserved to the states or the people. This principle was succinctly stated by the framers, in their writings, particularly in The Federalist. In The Federalist, number 14, James Madison spoke 'of the limited power of the federal government: "In the first place it is to be remembered that the general govern ment is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects .... "

Mr. Greenslade lives in Walnut Creek, California. Madison also distinguished the limited powers of the federal government with those reserved to the states. It is important to note that the powers of the federal government related primarily to external (foreign) af fairs: The powers delegated by the proposed Con stitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on exter nal objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part be con nected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the State. (number 45) Put quite simply, the federal government was empowered primarily to deal with for eign affairs while the States would concern themselves with domestic affairs.

Thomas Jefferson made this point in 1824: With respect to our State and federal govern ments, I do not think their relations (are) correctly understood by foreigners, (or Amer icans, for that matter.) They generally suppose the former subordinate to the latter, but this is not the case. They are coordinate departments of one simple and integral whole. To the State governments are reserved all legislation and administration in affairs which concern their own citizens only; and to the federal govern ment is given whatever concerns foreigners or 587 588 THE FREEMAN • SEPTEMBER 1995 citizens of other States, these functions alone being made federal. The one is domestic, the other the foreign branch of the same govern ment; neither having control over the other, but within its own department. In The Federalist, number 83, Alexander Hamilton stated that Congress was not granted general legislative powers: The plan of the convention declares that the power of Congress, or in other words of the national legislature, shall extend to certain enumerated cases. This specification of par ticulars evidently excludes all pretension to a general legislative authority, because an affir mative grant of special powers would be ab surd, as well as useless, if a general legislative authority was intendep.

The question as to whether the federal government should have power over land located within a state was before the Con stitutional Convention of 1787. It was pro posed to grant Congress exclusive legisla tive authority over what is now the District of Columbia, and like authority "over all places purchased for the erection of forts, magazines, arsenals, dockyards, and other needful buildings." The first part of the provision was agreed to and a short debate ensued concerning the second: MR. GERRY contended that this power might be made use of to enslave any particular state by buying up its territory, and that the strongholds proposed would be a means of awingthe state into an undue obedience to the general government. MR. KING thought himself the provision un necessary, the power being already involved; but would have to insert, after the word "pur chased," the words, "by the consent of the legislature of the state." This would certainly make the power safe.

Agreement with this change was unani mous and would become Clause 17 of Ar ticle I, Section 8 of the federal Constitution. The debates in the Constitutional Con vention illuminate the framers' fear of the federal government usurping power. There appears to be no question that the consent requirement of Clause 17 was added to prohibit the federal government from de stroying the sovereignty of the states. Clause 17 is one of the checks and balances incorporated in the constitution to keep the federal government within the bounds of its delegated powers. The Endangered Species Act was passed by Congress in 1973. As in the case of Mr. Ming-Lin, the federal government is enforc ing this law throughout the United States without regard for the prohibition of Clause 17. The Senate Report on the Act in 1973 acknowledged the limited jurisdiction of the federal government: "For the first time, the knowing taking of an endangered animal in violation of the law is a criminal offense where the federal government has retained management power." (emphasis added) In 1988 there was an amendment to the Act to afford greater protection to plants. A Senate report again acknowledges the fed eral government's limited jurisdiction: "Currently, anyone who captures, kills or harms a listed animal commits a violation of the Act for which substantial criminal and civil penalties may be imposed. However, it is not unlawful to pick, dig up, cut or destroy a listed plant unless the act is committed on federal land. Even on Federal land, however, there is no violation unless the plant is removed from the area offederal jurisdic tion." (emphasis added) In 1956 Congress prepared a report enti tled Jurisdiction Over Federal Areas within the States. The report contained an in-depth legal analysis of federal jurisdiction over land located within a state. The authors of the report reached the following conclusion based on clause 17 and decisions by the U.S. Supreme Court: "It scarcely needs to be said that unless there has been a trans fer of jurisdiction (1) pursuant to clause 17 by a Federal acquisition of land with State consent, or (2) by cession from the State to the Federal Government, or unless the Federal Government has reserved jurisdic tion upon the admission of the State, the Federal Government possesses no legisla tive jurisdiction over any area within a State, ... "

The lawbreaker, in other words, is not Mr. Ming-Lin. It is the federal govement. D THEFREEMAN IDEASON L1BERlY What Free TradeReallyMeans by Jeffrey Herbener G overnments were threatening trade wars with retaliatory tariffs and quotas, belligerents suffered currency devaluations and balance of payments deficits, and ev eryone threatened legal action. The United States and Japan in 1995? No, this situation described the relationship between the states in 1780. Prior to ratification of the Constitution, states had their own development policies. Some, like Virginia, tried to stimulate their existing agricultural cash crops; others, like Connecticut, tried to stimulate industrial development at the expense of agriculture. Each state had its own paper currency which appreciated or depreciated against those of other states, increasing uncertainty and therefore inhibiting interstate trade. Large and unequal government debt existed from state to state. Some, like Rhode Island, inflated it away and suffered a boom-bust cycle; others, like Massachusetts, raised taxes to pay it, squelching economic activity and spawning open rebellion.