Photo by Gage Skidmore, via Flickr

January 10, 2018 Brad Johnson 0Comment

The Nevada rancher emerged victorious thanks to prosecutorial misconduct.

Like the closing scene of the Breakfast Club, Cliven Bundy emerged from the Federal Courthouse in Las Vegas, NV with a triumphant fist-pump. It was the first time in roughly two years Bundy emerged from the federal building a free man. Judge Gloria Navarro dismissed the case on tainted due process grounds, neither the patriarch, nor his sons, can be tried again for the same crime.

The plight of the Bundy’s is one of sympathetic origins, plagued by gross misconduct. The federal government owns vast swathes of land out in western states such as Montana and Nevada — 84.9% of the Silver State, to be exact. Such an unconstitutional practice is an affront to the constitutional order and it deserves appropriate push back. Bundy recognized this and decided to stand athwart government overreach. However, the way in which he defied the Feds was irresponsible at best, and egregious at worst.

Bundy and his family are cattle ranchers by trade. Owning thousands of cattle presents a quite large feeding burden. The Federal government charges a grazing fee on “their land,” and Bundy took particular issue with this practice, considering the largely illegitimate ownership of the land in the first place. He decided not to pay the tax, thus ruffling the feathers of the tax-happy suits. A prolonged standoff — in which Cliven got to live out his fantasy of achieving John Wayne-like lore, and the Feds getting to deploy their own set of fetishized force — resulted in Bundy being arrested on multiple charges. Bundy had convinced himself the only way to get what he wanted was to show off his Rambo-like firepower and Gran Torino-esque resolve.

In hindsight though, and to anyone with some semblance of foresight at the time, an armed standoff with the federal government is not a good way to make your case on breach of authority. The far better option, then and now, was to sue the felonious party — and it was one that was harmed by Bundy’s erroneous actions.

The case itself is quite clear — the federal government has no right to own and operate state lands. But in a classic example of constitutional relativism, the Federal government has used the “Property Clause” of the Constitution to justify its desire to do just that. It reads, “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting Territory or other Property belonging to the United States; and nothing in this Constitution shall be construed as to Prejudice any Claims of the United States, or of any particular State.” Naturally, “living constitutionalists” take this to mean the Federal government has an inherent right to all land within its borders. Yet the founding makes it explicitly clear that while the Federal government is the authority on all enumerated powers the Constitution gives it, the republican government established is not only a balance of power between the three famous branches of the federal government, it is also a balance between that federal body, the states, and the people.

“Redress for wrongdoings does not lie at the barrel of a gun, but at the tip of a pen.”

States are bodies autonomous within their own borders as well (as long as they do not violate individual rights or federal law — the latter proving to be incredibly difficult these days). Federal land grabs by way of loose justifications for eminent domain, or gross abrogation of individual and state property rights undermines the power balance that is so crucial to our functioning republic. The Constitution provides three examples of when the federal government may possess land. The first are territories, understood as land that was owned by the federal government but has not been formed into a state (i.e. Northwest Territory). The second are enclaves, heralded as land within a state owned by the federal government under necessary purposes like military bases, forts, and arsenals. The third being “other property” for enumerated functions like courthouses and such. This third category, while being the broadest in name, was meant to be distinct and limited in functionality.

Land owned for the purposes of creating revenue by way of service charge is not a power authorized to the federal government by its founding document. Bundy had a case. But he squandered much of the sympathy behind his cause when he acted erratically. States have been quite successful in defying the federal government, especially during the rather progressive administration of Barack Obama. One example of this is Scott Pruitt, the current EPA head and former Oklahoma Attorney General. He sued the federal government over a dozen times and has been largely successful in his opposition to bureaucratic overreach.

Cliven Bundy and his band of John Wayne wannabes should have taken their case to court, rather than wait to be sued on the federal government’s grounds. Had it not been for the federal prosecutor’s lies, deceit, and underhanded tactics during their trial, he’d be sitting in federal prison for the better part of his remaining years.

When every conflict with the feds is one to raise a gun over, America becomes the Wild West depicted in Wayne’s movies. Except in the most extreme of circumstances, redress for wrongdoings does not lie at the barrel of a gun, but at the tip of a pen. Lawsuits, while many seem trivial and are often overused, are the way in which wrongs are righted and retribution is delivered. There’s a reason that at the end of the greatest movie of all time, The Magnificent Seven (the original), Yul Brenner and Steve McQueen’s characters encourage Horst Bucholz’s to give up gun-fighting and join the farmers they saved as one of their own. After saving the villagers and their town from bandits, Brenner quipped “The old man was right, only the farmers won. We lost. We always lose.” The right to bear arms was specifically written to allow the people a hope of resistance against a tyrannical government. The willingness to settle disagreements like cowboys only undermines the case for it, should the legitimate need arise.

Follow this author on Twitter: @bradjCincy

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