Thursday, December 31, 2015

The False and Featherheaded Patriots Blown Far by Breezes of Bull

By Bob Ferris
 “An electrician, a diesel mechanic and a fire chief come together to discuss Constitutional Law…”
The above is joke and punchline all in one, but it is also the lead-in to a situation unfolding in Burns, Oregon now that the self-identified “militia” have inserted themselves into the legal proceedings involving the father and son ranchers who are awaiting incarceration after being convicted of illegally setting fire to Bureau of Land Management lands adjacent to their ranch to their southeastern Oregon holdings.  The militia folks are waving their copies of cherry-picked and purposely incomplete phrases of the US Constitution as rationale for the local sheriff to hold the ranchers and prevent them from being taken to federal prison.  The sheriff has rightfully refused perhaps, in part, because he has read the US Constitution and understands the Supremacy Clause as well as others relating specifically to this situation.

Have no fear because Ryan Payne is on the job enforcing a Constitution he has clear not read or understood.
Sound a little Bundy-like?  Well it should because one of the main militia activists (pictured above) is Montana electrician Ryan Payne (1,2,3) who was a vocal actor in the illegal standoff in Nevada and the diesel mechanic in this equation is Cliven Bundy’s son Ammon from Arizona.  And they are rolling out the tired and completely without grounding argument that Article 1, Section 8, Clause 17 of the U.S. Constitution limits the size of properties that the federal government can hold within states (see below).
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; — And
 To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Article 1, Section 8, Clause 17
I suppose when the fire chief in question saw this language he was “intrigued” because taken out of context and not understanding the genesis of this clause (click on sections of the clause to get legislative explanations here) it seems to say something kind of similar to what these two yahoos are claiming.  I suspect too that the fire chief is also not familiar with how new states are formed or that the Oregon Constitution established the Department of State Lands expressly to manage lands ceded to them by the federal government to fund education (something that is obviously needed).   And the fire chief certainly seems unfamiliar with the “Property Clause” of the US Constitution below which clearly stamps Bundy and Payne’s arguments as the cow flop they are with the phrase in bold below.
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; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.” Article IV, Section 3, Clause 2 (see here for discussion on this topic and here for analysis by Congressional Research Service).
Now I do not expect that everyone should know and understand the US Constitution completely—folks spend their entire lives studying this document.  That said, if you are travelling to another state, taking up an assault rifle, and dressing yourself in paramilitary fashion to defend some principle in this document—putting your life and the lives of others at stake—you had better have read and understood all 4,543 words of the original document as well as the 3,048 words contained in the 27 amendments (for point of reference the average children’s book for 7-10 year-olds is 10,000 words).

I would also suggest that if you are someone or a member of a family who has repeatedly tried to argue your “vision” of what the US Constitution says in local and federal courts and lost as often as you have tried (1), some self-awareness might kick in that should trigger the thought that you are not the best one to teach others what the US Constitution says or does not say.  It is also interesting that someone who was surprised that they were tasered twice while climbing onto a federal vehicle during a tense stand-off with armed participants thinks they might have found the legal loophole they seek in a document written mainly by people who spoke multiple languages, studied the classics and were the brightest of their day.

While I am on this roll, I will also say that the reporting on this in the Oregonian is faulty.  Why, for instance, was it so easy for the reporter to cite the irrelevant Article 1, Section 8, Clause 17 known as the “Enclave Clause” offered up by Payne and Bundy and not mention the relevant “Property Clause” or the Oregon Constitution which completely nullifies their argument?  And why use the phrase “federal government claims title” which could imply that ownership is legitimately disputed when it is not having been established by Constitutional Law, the Oregon Constitution and the Congressional legislation that established the State of Oregon in the first place?  The public would have been better served with facts about the legitimacy of the underlying arguments offered by the outside agitators than cute stories about signs and pugnacious parents.

Mr. Payne, Mr. Bundy and others of their ilk likely see themselves as "patriots" of some form or another.  Given the facts it is really, really hard to credit that claim as they are actually acting in a manner contrary to the very document they claim to embrace.  Moreover, they put themselves and others at risk and are quite frankly lying to themselves or others (or both) each time they roll these arguments out or wrap themselves in a flag they have not taken the time to know or understand.


Dear All:

Within the next few days I am going to write a piece in GREEN DREAMS that starts to frame what we—the actual owners of the Malheur National Wildlife Refuge—think that the occupiers have done wrong legally and that requires punishment. I would ask folks to speculate on exactly what charges should be leveled and what rational punishment should be applied and to whom. Please let me know what you think and your ideas in the comments section of this post and others. I know that these might range from firing squads to atomic wedges, but this is a serious set of questions that we should address and by doing so and by conducting a public dialog on this issue help those trying to assess the public appetite for doing something. Thank you for your help and interest in this important concern.

And please enter the public dialog on Jail the Bundys, Now and encourage others to do the same.

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