As some of the more militant libertarians, especially the anarcho-capitalists, flock to the support of Cliven Bundy in his standoff with the federal government, most of the libertarian-minded law professors are debunking their absurd claims and pointing out how gloriously wrong those people are. Josh Blackman is one of them.
First, Bundy seems to reject the Constitution’s property clause. (It was a wonderful twist of scheduling fate that I assigned the “Property Clause” in ConLaw the week after the Bundy Ranch standoff. ) In an interview he said that the federal government has “no jurisdiction or authority” on his grazing rights. Under the Property Clause, Congress has the power to “dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” The land at issue was owned by the United States prior to Nevada statehood as a territory. I suspect Bundy will argue that his family has obtained a prescriptive easement on the land, as it has continuously, openly, and (absolutely) hostilely, grazed on the land for 170 years. Though, adverse possession is not permissible against the federal government.
Second, Bundy does not accept the supremacy clause, as he said he has “no contract with the United States government.” To the extent that BLM, pursuant to the Property Clause enacts regulations concerning land the government owns, then yeah, he has a contract with the government. Those are the Supreme Laws of the land.
He also goes into the Equal Footing Doctrine, which Bundy and his supporters are completely distorting. And he links to a post by Walter Olson (a legal scholar with the Cato Institute with whom I’ll be having dinner in a couple weeks when I’m in Maryland giving a talk), who quotes Ted Frank in a comment on his Facebook page:
I hate to see how many on my side who are upset at Obama’s violation of the Rule of Law cheer the Bundys’ criminal contempt of a court order. The Bundys are claiming a right to graze upon federal lands without paying or consent of the landowner on the grounds that the federal government has no sovereignty over Nevada. The US BLM has taken twenty years and multiple court proceedings to kick them out, winning twice in the Ninth Circuit. In response, armed militias showed up this week to defend the Bundys, who have threatened range war. The government has temporarily caved to avoid the possibility of armed confrontation. This really isn’t a close question, and threatens to tar all small-government and Second Amendment supporters.
No, it isn’t a close question. But the people being tarred are those who are supporting Bundy and his utterly inane position. And bear in mind that Bundy’s position is so radical that he says, “I don’t recognize the United States Government as even existing.” That’s simply delusional. And frankly, it’s high time the man was arrested for his flagrant flouting of the law for 20 years. And if that sparks a fight with a few hundred extremists who flocked there just for that fight, so be it.