Are national parks constitutional?

[ATFFL]

  The Confederate states thought they were independent and were proven wrong. 

Actually they were a sovereign independent nation was was invaded and forced to comply by force of bayonet.

After provoking a war by firing on foreign troops.

[MODU]

  The Confederate states thought they were independent and were proven wrong. 

Actually they were a sovereign independent nation was was invaded and forced to comply by force of bayonet.

hahaha . . . so even then, they were not independent states, but rather shared authority with a higher power.

[True Federalist (진정한 연방 주의자)]

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."

Let me quote the whole paragraph you selectively quoted, with a particular sentence emphasized by me.

You must be logged in to read this quote.

In short, the Court has decided, correctly in my opinion, the following:
1. National Parks are constitutional.
2. The States retain such sovereign rights over such parks save those that they have expressly surrendered.

[A18]

Um, citing a Supreme Court opinion over a specific issue does not mean you agree with the whole thing.

The taking of private property under eminent domain does not put it under DC-like jurisdiction. The federal government must still abide by its limited, enumerated powers under the Constitution.

[jimrtex]

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.

'welfare' is intangible, just as is 'defense'.  Don't confuse it with the meaning of payments to indigent persons.

welfare - 1. the state of being or doing well; the condition of health, prosperity, and happiness; well-being.

The well-being of the United States is enhanced by the protection and preservation of sites of particular national historical, cultural, geological, biological, or recreational significance.

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.

[True Federalist (진정한 연방 주의자)]

The taking of private property under eminent domain does not put it under DC-like jurisdiction.

Agreed, but that's totally consistent with what Collins v. Yosemite Park says.  It takes state consent to do that.  Now, I'll grant that a hyper-constuctionist would argue that the feds can only assume sole sovereignity under Clause 17, even if a State be willing to dicker with the Feds over who controls what.  However, even under a hyper-constructionist view of the constitution, national parks are still constitutional, they simply wouldn't be immune to the laws of the state they are in, that's all.

[A18]

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.

'welfare' is intangible, just as is 'defense'.  Don't confuse it with the meaning of payments to indigent persons.

welfare - 1. the state of being or doing well; the condition of health, prosperity, and happiness; well-being.

The well-being of the United States is enhanced by the protection and preservation of sites of particular national historical, cultural, geological, biological, or recreational significance.

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.

Uh, we know what welfare means. I guess you were confused by it or something, and assumed we were as clueless as you.

For something to be general, as we've explained several times, it has to be national as distinguished from local, meaning it must be outside the sphere of the states. This clearly is not.

[A18]

The taking of private property under eminent domain does not put it under DC-like jurisdiction.

Agreed, but that's totally consistent with what Collins v. Yosemite Park says.  It takes state consent to do that.  Now, I'll grant that a hyper-constuctionist would argue that the feds can only assume sole sovereignity under Clause 17, even if a State be willing to dicker with the Feds over who controls what.  However, even under a hyper-constructionist view of the constitution, national parks are still constitutional, they simply wouldn't be immune to the laws of the state they are in, that's all.

The federal government can only purchase land to carry into execution one (or more) of its enumerated powers.

[Bleeding heart conservative, HTMLdon]

It is abundantly clear that the protection of national treasures is very much in the general welfare of the people of the United States under even the most strict of interpretations.  The Grand Canyon is not of sole interest to the people of Arizona, but it is clearly of interest to the entire nation.

[Bleeding heart conservative, HTMLdon]

The well-being of the United States is enhanced by the protection and preservation of sites of particular national historical, cultural, geological, biological, or recreational significance.

Amen!

[jimrtex]

we

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

[A18]

It is abundantly clear that the protection of national treasures is very much in the general welfare of the people of the United States under even the most strict of interpretations.  The Grand Canyon is not of sole interest to the people of Arizona, but it is clearly of interest to the entire nation.

To quote James Monroe, "Have Congress a right to raise and appropriate the money to any and to every purpose according to their will and pleasure? They certainly have not."

Under the broad construction advocated by Hamilton, the powers of taxation and appropriation extend only to matters of national, as distinguished from local, welfare.

To be national as distinguished from local, it is quite clear that an appropriation must do more than merely benefit the American people. If your interpretation is correct, Congress has power to establish public schools; to appoint teachers in every state, county, and parish, and to pay them out of the public treasury; to take control of all roads, rather than merely post roads; to establish national industries of every kind, rather than merely banking; or, in short, to destroy local self-government and federalism.

Your assertion that even the most narrow interpretation of the General Welfare Clause would allow for national parks is quite plainly wrong. That interpretation was offered by the Father of the Constitution himself, James Madison.

To Madison, the words 'General Welfare' and 'Common Defense' were just a convenient way of referring to the other powers, and confer no independent spending power of their own.

Furthermore, the power to spend for the General Welfare certainly can not mean that the federal government may purchase land for any purpose they choose, as that too would subvert federalism.

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."

[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.

[??????????]

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?

[opebo]

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.

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

[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.

[opebo]

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.

Regardless, the interpretation of the meaning of the word is done by the court. 

[??????????]

I admit Philip does throw out some really dumb and cheap insults out but I just kind of get the laugh out of them and keep reading. It comes with being 16 or 17 I suppose.

[jimrtex]

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 from local.

You are mixing up the operation with the ensuing benefit.  Let's say that Congress were to establish a fort at Gettysburg.  The spending would mostly be localized.  Raw materials lumber and stone might be drawn from the surrounding area, perhaps providing an economy of scale such that mills and quarries could be established for both military and commercial purposes.  Local merchants would benefit from trade with soldiers at the fort.   The security of the area might be greater than in other areas further from a fort.

But can there be any question that the fort is a provision for the common defense?  The provision is localized but the benefit (in this case the common defense) is national in scope.

Similarly the provision for a national park at Gettysburg will be mostly local.  Innkeepers and restaurateurs in the area will benefit from visitors.  Employees may be drawn from the area, or at least will live in the area.

But the benefit of protecting and preserving the battle site are national and general in scope.   That is, it is for the general welfare.  Congress, in funding the purchase and operation of the national park is providing for the general welfare.  That Pennsylavania happens to receive some secondary benefits is inconsequential.

BTW, I think you have Hamilton and Madison reversed.   Madison in Federalist, Number 41 argues against the common sense interpretation that Congress has adopted.

[A18]

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."

The "common sense" view that Congress has adopted is that "general" and "welfare" are both policy questions, that the judiciary will not review. This view, in addition to having been rejected by both Madison and Hamilton, is patently absurd.

As Madison put it, "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."

[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."

[angus]

Are national parks constitutional?

when you can answer this question, Milk and Cereal, you can answer your question about constitution interpretation.  there's only one lawyer who posts regularly on this forum, but you don't need a lawyer to be able to tell what (hopefully) your eighth grade social studies teacher taught you.  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.

[A18]

Nonsense. It has always been understood that the federal government is one of few and defined powers. The question is the extent of those powers.

No one can argue, in the light of the tenth amendment, that anything else is the case. That is why liberals instead insist on stretching the "interstate commerce clause" and the power to spend for the "general welfare."

[angus]

Nonsense. It has always been understood that the federal government is one of few and defined powers. The question is the extent of those powers.

No one can argue, in the light of the tenth amendment, that anything else is the case. That is why liberals instead insist on stretching the "interstate commerce clause" and the power to spend for the "general welfare."

as if anyone ever had any doubts about whether you had a broad or strict interpretation. 

[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.