Are national parks constitutional?

[Emsworth]

This is a very interesting question, Philip. The clause on which Congress' authority might rest is:

"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." (Article IV, Section 3, Clause 2)

In any territory or property of the United States, there can be no doubt that Congress has the power to create national parks, pursuant to its authority to make "all needful Rules and Regulations." The only question, then, must be whether the United States had the authority to acquire such property in the first place.

There are five possible sources of congressional power to acquire lands:

1. The states may cede a "District (not exceeding ten Miles square) [to] become the Seat of the Government of the United States" (Article I, Section 8, Clause 17). National parks do not form the seat of the government, and, moreover, are more than ten square miles in area.

2. Congress may purchase land "for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings" (Article I, Section 8, Clause 17). But a national park is not a fort, magazine, arsenal, dock-yard, or building. As the Supreme Court held in Collins v. Yosemite Park, " forests, parks, ranges [and] wild life sanctuaries ... are not covered by Clause 17."

3. Congress may spend money to provide for the "general Welfare of the United States" (Article I, Section 8, Clause 1). But the welfare must be general, not local. As Alexander Hamilton expressed this limitation: "the object to which an appropriation of money is to be made be General and not local; its operation extending ... throughout the Union, and not being confined to a particular spot." National parks do not meet this criterion. Furthermore, as the Supreme Court correctly held in United States v. Butler, this clause does not extend to matters "within the sphere of state government." Parks are inherently local matters, firmly within the sphere of the states, not general ones subject to federal control.

4. Congress may acquire land under the necessary and proper clause. However, such land must be purchased for some other governmental purpose expressed in the previous clauses of Section 8. Setting up parks is not one of those purposes; therefore, the necessary and proper clause should not even come into the picture.

5. The government may seize lands under its eminent domain power. But as in the case of the necessary and proper clause, the land must be taken for some constitutional purpose, which as I said before does not exist in this instance.

It has been argued that the United States may purchase lands for any purpose. I would strongly oppose such an assertion, because it contravenes the notion that the powers of Congress are limited to those enumerated in the Constitution. The only exception is that the United States may acquire any territory from foreign countries by treaty, for any purpose whatsoever, because the treaty-making power is plenary, not limited by enumerations.

Therefore, on the whole, Congress may not buy lands from states in order to set up national parks. It may, however, set up parks in territories that were not purchased from states and do not form part of any state (e.g., Alaska before it became a state, or Puerto Rico today), and in the District of Columbia.

[Emsworth]

Of course they do, emsworth, as they may be visited by American citizens from any state.

The operation of a national park does not extend throughout the country, but rather to one particular place alone. It does not matter whether people from other states will benefit; all that matters is whether the actual operation of the system is general, not local.

You must be logged in to read this quote.

The Constitution does not distinguish between states and municipalities; the governments of the latter are considered extensions of the former.

You must be logged in to read this quote.

My constitutional views are not based on what I like or dislike. I have no particular opposition to abortion, for example, and believe that it should be legal, yet recognize that the Constitution does not require it to be.

[Emsworth]

I know exactly what they meant.  As I said, the particular physical location of a thing - government office, etc. - has no bearing on its generality.

The word "general," as used in the Constitution, has nothing to do with "generality." It was a synonym for "federal"; thus, people spoke of the "general government," where we would speak of the "federal government."

Therefore, unless the expenditure involves the general or federal welfare, extending throughout the union (to use Hamilton's words), it cannot be justified by the general welfare clause.

[Emsworth]

Would operation and ownership of the Gettysburg National Military Park fall inside or outside of the general welfare of the United States?  ... Preservation of sites of special historical significance is clearly of interest and benefit to the United States, and not merely to the people in southern Pennsylvania.

I'm afraid not. The park may have some sort of intangible national benefit, but the welfare is not general, as distinguished from local. It should be preserved by the Commonwealth of Pennsylvania, not the United States.

[Emsworth]

State governments are wholly independent of the federal govt. If the states don't approve of the feds taking land for parks then I feel the feds have no constitutional right to own it.

Absolutely correct, StatesRights. The consent of the state legislature is necessary when the federal government wishes to take land.

I think that even if the state legislature gives its consent, the federal government may not buy the land for a national park. The Constitution only talks about buying land for putting up "needful Buildings," a term which does not encompass a park.

[Emsworth]

That's not techically correct.  While states do possess the right to manage themselves, they do answer to the higher authority.

The states and the federal government are dual sovereigns. Both of them answer to a higher authority: the Constitution.

[Emsworth]

You agree that preservation of the site is of national[/b] benefit.  That it is of benefit to the united States and not to some particular States that makes it general, rather than specific or local in scope.

That is not the original understanding of the clause. The meaning of the word "welfare" is a political question, not a judicial one. But the meaning of the word "general" is not. Hamilton made it very clear that the actual operation must extend throughout the country; otherwise, it would not be general, as distinguished fro local.

[Emsworth]

we

I'll wait for Emsworth's response.  You are not worth any of my time.

Why, he's one of the best posters here?

I would agree with States here. Philip has an excellent understanding of constitutional law, probably unrivalled by any other poster.

The only honest choices are to (A) revert to the Madison doctrine, in which case 90% of what the federal government does is unconstitutional; or (B) limit federal expenditures to those purposes which do not fall within "the sphere of state government."

I wholeheartedly agree; these are the two interpretations from which the courts should choose. In general, though, I favor Hamilton's interpretation over Madison. The courts should interpret the Constitution bearing in mind the principle that, as it originally stood, it did not contain any redundancies. Hamilton's position seems more in accord with this principle than Madison's. Furthermore, Hamilton's view is supported by the weight of precedent more than Madison's.

How can the meaning of a word in the constitution (or a law) not be a judicial question?

The word "welfare" implies judgment on whether a particular action is beneficial or not--an inherently legislative, political, and subjective determination, not an objective judicial one.

[Emsworth]

No, he is correct. Hamilton, in his Report on Manufacturers, said, "The only qualification of the generallity of the Phrase [General Welfare] is this -- That the object to which an appropriation of money is to be made be General and not local; its operation extending in fact ... throughout the Union, and not being confined to a particular spot."

That is indeed true. It is not the benefit that must be general--theoretically, any benefit is general, no matter how remotely. It is the actual operation, not merely the benefit, which must be general in order for the clause's requirements to be satisfied.

The Hamiltonian position (which, I must add, is in fact the most liberal between the two different positions taken by the Framers) carries the judicial imprimatur. In United States v. Butler, the Supreme Court agreed that the welfare in question must be general, as distinguished from local:

"[The argument that] though the makers of the Constitution ... by a single clause gave power to the Congress to tear down the barriers, to invade the states' jurisdiction, and to become a parliament of the whole people, subject to no restrictions save such as are self-imposed ... must be rejected."

[Emsworth]

Some folks believe that anything the constitution doesn't specifically mention isn't any business of the federal government (e.g., national parks)  Others believe that if the constitution doesn't specifically forbid the government from doing something (e.g., national parks), then it lies within the provenance of the federal government.  Which do you believe?  The answer to this question is the answer to whether you hold a "broad" or a "strict" interpretation.

Of course, the Constitution need not "specifically" mention something for the federal government to be able to legislate on the subject; the enumerated powers of Congress are mostly quite general. The commerce clause, for example, comprehends a vast variety of topics, as do the general welfare clause and the elastic clause.

But although a particular power need not be "specifically" authorized in order to be constitutional, it does have to fall under one or more of the broad and general powers. The establishment of parks does not fall under any of these general powers.

[Emsworth]

actually, yours is a tad nuanced, and you don't seem to fall so clearly into either camps, based on your posts, I'll admit.  You're the Sandra Day O'Connor of posters, I think.

Hmm, I don't know if I should take that as a compliment. O'Connor isn't exactly at the top of my list of good Justices.

In any event, I should point out that I cannot recall an instance in which Philip and I disagreed over the extent of congressional powers, except one (we differed over whether Congress may attach conditions to a grant of money made to states, when the conditions are not reasonably related to the grant itself, under the general welfare clause).

[Emsworth]

You must be logged in to read this quote.

I would admit that I am (like Philip) quite dogmatic about the original, strict, and plain meaning of the Constitution.

I can certainly respect those who use a different standard of interpretation (although I disagree with it), as long as it is reasonable and consistent. It's primarily with the individuals who read their own personal views and prejudices into the Constitution, and with those who argue for a "living Constitution" (i.e., the Constitution means today what it did not mean yesterday, merely because of some social factor), that I have a particular disagreement.

[Emsworth]

Bottom line here is that you can, imho, read just about anything you want into the preamble.

Certainly you can. That is why we are fortunate that the preamble does not have the force of law.

You must be logged in to read this quote.

On the contrary, I would argue that it does say that we can't have national parks. It doesn't say so specifically, but the Tenth Amendment declares that "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." The power to create national parks was not delegated to the United States; therefore, the Constitution does prohibit their establishment.

Nothing wrong with state parks, though.

[Emsworth]

When judges change the meaning of the Constitution, we no longer have a Constitution.

I completely agree.

Too many judges have written into the Constitution their own personal views, rather than objectively analyzing the original understanding of the instrument. If a judge disagrees with any part of the Constitution, he is always free to resign. If he is so inclined, he is free petition Congress and the states for a constitutional amendment. But he is not free to rewrite the Constitution, under the guise of interpretation.

But, and you're a good enough historian to know this, it is a living, breathing document.

If you mean that the Constitution contains words that must be applied to new situations, then you are perfectly correct. But if you mean that the Constitution means today what it did not mean yesterday--if you mean that the Constitution is inscribed in the sands, changing in meaning with each new political, social, or economic wave--then I must completely disagree.

but by your logic neither is Social Security, Funding of Arts and Humanities, National Institutes of Health research, etc.

No, they aren't constitutional, either.

[Emsworth]

"The only qualification of the generallity of the Phrase is this -- That the object to which an appropriation of money is to be made be General and not local; its operation extending in fact, or by possiblity, throughout the Union, and not being confined to a particular spot." (Hamilton)

One cannot just concentrate on the former part of the sentence and ignore the latter. Hamilton makes it abundantly clear that the actual operation must extend throughout the Union. The operation of a park is, undoubtedly, "confined to a particular spot," and therefore not within the purview of the spending clause.

As Hamilton notes, it is not sufficient that the welfare be "general." It must be "General and not local"--general, as distinct from local. When something falls firmly within the sphere of the states (as establishing parks) it is not comprehended by the general welfare clause.

This distinction was very well-understood at the time of ratification; it is evidenced by the passage quoted above from Hamilton: the welfare must be general, and not local, its operation extending throughout the Union. In the Virginia ratifying convention, Edmund Pendleton suggested that the purposes of federal and state spending and taxing powers, being "limited to the different objects, ... can no more clash than two parallel lines can meet."

Furthermore, Justice Joseph Story, in his Commentaries on the Constitution of the United States, said, "if the welfare be not general, but special, or local, as contradistinguished from national, it is not within the scope of the constitution." He adds that appropriations under the spending clause must be to "limited to objects of a national character."

James Monroe, a delegate to the Virginia ratifying convention, similarly declared later that the general welfare clause did not "break down all the barriers between the states and the general government, and consolidate the whole under the latter." John Marshall, another delegate, later noted that Congress may tax (and thereafter spend) "for those purposes which are within the exclusive province of the states." Therefore, I would conclude that the state-national distinction is not merely a fictional or imaginary one, but one that was actually the original understanding of the Constitution.

Hamilton said that dissemination of learning about agriculture was encompassed within the general welfare.  Describe how the federal government might do this.

The actual operation in this case--dissemination of this information--extended throughout the Union. The actual operation of a park, on the other hand, does not.

[Emsworth]

That doesn't mean he is making the right argument that would do the most good for the country.

I completely agree with htmldon. I am not arguing about what would or would not do the most good for the country. I am arguing about what the Constitution does or does not permit. Whether something is good or bad is completely irrelevant.

You must be logged in to read this quote.

The states are perfectly free to preserve parks, protect workers, or protect the rights of minorities. The federal government is also free to protect the rights of minorities in certain circumstances.

[Emsworth]

Certainly, education and transportation have more of a national benefit than some park.

Are you saying that protection of the Grand Canyon, or the geisers at Yellowstone does not have a national benefit?

No, he is not saying that parks do not have a benefit. He is saying that education and transportation have more of a benefit.

I would agree with him: I think that educating people and maintaining the interstate highways is more important than maintaining a park.

[Emsworth]

They are all important tasks.  And all of them are important enough to either be performed by the Federal government or with appropriate federal oversight.

The Constitution does not allow the federal government to oversee anything it deems important. It is the powers of the federal government which are limited, and the powers of the states which are plenary--not the other way around.

[Emsworth]

One can not just concentrate on a single paragraph of what Hamilton wrote.  You are looking at the word "operation" and assuming that he is referring to the operation of some facilility or governmental bureau, and then treating "object" as meaning that facility or bureau.

On the contrary, "operation" need not refer to the operation of a specific facility, but rather to the operation of the whole program.

You must be logged in to read this quote.

It is insufficient that the "object" be for the national benefit. I think that Hamilton makes it clear that it must be for the national benefit, and that the operation extend throughout the union.

You must be logged in to read this quote.

Where does Hamilton speak of dissemination of information about agriculture?

You must be logged in to read this quote.

Nothing wrong there. But the end of establishing a national park is not "within the scope of the constitution."

You must be logged in to read this quote.

The interstate highway system.

[Emsworth]

If the answer is nothing, then your interpretation would not only (in my view) undermine federalism, but make several of the other enumerated powers useless.

The fact that the Framers deemed it necessary to include a separate power to establish post offices and post roads speaks volumes. It is a principle of constitutional interpretation that there are no redundancies in the original Constitution. If something as remote as a park would be comprehended by the general welfare clause, then why did the framers specify a power to establish post offices (which is even more closely related to the general welfare)?

[Emsworth]

No, you still aren't understanding.  Hamilton is saying that the welfare must be general, not local, that the welfare's operation extend throughout the Union.  The means need not be general, but the effect must be.

I'm disputing that very point that you make. If the means are not general, then (by definition) the welfare is not general, as distinguished from local.

You must be logged in to read this quote.

When Hamilton says "its operation," he is not referring to the object of the spending: he is referring to the operation of that object. In other words, although I construe "object" as the benefit, I construe "its operation" (i.e., "the object's operation") as meaning that the actual program must be general, not just the supposed benefit. Any benefit to any person can be arguably said to be general.

You must be logged in to read this quote.

While I do not attempt to sound arrogant, the Supreme Court has upheld all sorts of things that they shouldn't (see, for example, Gonzales v. Raich). In any event, the national park was not upheld under the general welfare clause, but under the supposed power of the federal government to acquire lands.

You must be logged in to read this quote.

There are no implied federal powers, only enumerated ones.

I have no doubt that the government has the power to maintain the property that it owns, such as the paper on which any law was written, under the elastic clause. But the government does not own Gettysburg.

In any event, how would you justify the fact that the Framers felt it necessary to mention a separate enumerated power to establish post offices and post roads? Surely, these are for the "national benefit." Yet, the fact that the Framers specifically mentioned it, combined with the principle that there are no redundancies in the original Constitution, means that the general welfare clause is not as broad as has been asserted.

[Emsworth]

The establishment of post roads and post offices is an exclusive authority of Congress by necessity due to its interstate operation.

I see nothing in the Constitution to indicate that a state could not establish its own post offices, just like private companies can.

If Congress were to operate schools throughout the Union, it would be for the purpose of educating its citizens.  Education of citizens improves the welfare or well-being of the United States.  But what you seem to be arguing is that the important thing is that the program provides jobs for teachers and other school workers throughout the country generally, and not that it provides education generally.

That is not what I am arguing, because a national education system would be unconstitutional. The welfare would not be general, as distinguished from local. In the words of James Madison:

"If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress... Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America."

To argue that the general welfare clause authorizes the establishment of schools or parks or all roads by Congress would ignore the original understanding of that clause.

You must be logged in to read this quote.

The Smithsonian Institution in the District of Columbia, isn't it? Congress has complete jurisdiction over that district; it need not rely on the general welfare clause for power.

You must be logged in to read this quote.

Clause 17 only authorizes the purchase of lands for "the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings." The original purchase was unconstitutional.

[Emsworth]

So Hamilton was wrong?

Hamilton's interpretation was at one extreme, Madison's at another. I suggest that the appropriate construction of the clause lies in between, closer to Hamilton's. Anything that is within the sphere of the states does not fall under the general welfare clause.

Otherwise, many of the other enumerated powers would be redundant.

You must be logged in to read this quote.

Before the ratification of the First Amendment, it could have done so.

You must be logged in to read this quote.

Roads certainly existed, and the Framers specifically refused to give Congress power over all roads.

You must be logged in to read this quote.

If the Smithsonian is set up as a private trust, yes. Otherwise, it may not, as there is no plenary federal power to expend outside D.C. (However, there is a plenary state power, so Virginia may fund it.)

You must be logged in to read this quote.

A park is not a needful building. "Forests, parks, ranges, wild life sanctuaries ... are not covered by Clause 17." (Collins v. Yosemite Park)

[Emsworth]

Aren't several of the enumerated powers redundant with "common defense"?

No, they are not. The common defense power, like the general welfare power, is only a spending power. Clause 11 dpes not overlap it, because it covers declaring war, granting letters of marque and reprisal, and making rules--all of which do not fall under spending. Similarly, clauses 12 and 13 authorize the actual raising of armies and navies (which implies the power to regulate them, to provide for the appointment of officers, make rules regarding enlistment, and all manner of other things which do not constitute spending).

On the other hand, if we accept your interpretation that the general welfare clause entails power over all roads, the post offices and post roads power becomes redundant.

You must be logged in to read this quote.

I never said that the sole effect of the First Amendment was to prevent an establishment of religion in a capital district. I only said that in the absence of the First Amendment, nothing would have prevented Congress from establishing a religion in that district.

With regard to the states, the establishment clause was strictly speaking unnecessary, as no power to establish religion had been granted. This is certainly what Madison thought.

You must be logged in to read this quote.

A specific prohibition is not necessary; under the Tenth Amendment, the lack of specific permission is sufficient.

You must be logged in to read this quote.

The necessary and proper clause seems to permit such an action, given that the zoo is in D.C.

You must be logged in to read this quote.

It is not a building.  

You must be logged in to read this quote.

Unlike a paper document, the land is a part of a sovereign state. There is no constitutional  power to buy land except in certain circumstances.

You must be logged in to read this quote.

No, the point of Collins (if I recall correctly) was that the U.S. possessed plenary power to buy land from the states (a power allegedly inherent in the government, not provided for by the Constitution). Needless to say, I do not believe that there are any inherent powers.

[Emsworth]

He makes a good point about the words 'Common Defense.' Clearly, the power "To ... maintain a Navy" is a spending power.

Maintaining a navy probably involves more than just expenditure. It may entail providing for the appointment, removal, or discipline of officers and enlisted personnel, the power to direct how ships may be used, and the like.

Powers may certainly overlap; I do not deny that suggestion. However, I do deny that any power is completely redundant, as the post offices and post roads power would be under the interpretation proposed. Indeed, the common defense power itself would become redundant if we accept jimrtex's interpretation of the general welfare clause; the common defense is clearly to the "national benefit."

You must be logged in to read this quote.

As this debate proceeds, I am becoming more and more convinced that this theory might be correct. One important point I failed to note earlier was that Madison's interpretation would not necessarily result in a redundancy. If the spending clause were interpreted as a source of spending power, then Madison's interpretation would certainly be redundant. But if we interpret the spending clause as a limitation on the taxing power, then no redundancy would arise. Indeed, if the spending clause is regarded as a limitation, then Hamilton's interpretation would be incorrect.

At this stage, however, I don't think that I have enough historical evidence to completely discard Hamilton's position (which is backed by the weight of precedent). I'll have to read a bit more before coming to a conclusion...