Are national parks constitutional?

[A18]

Are national parks constitutional?

[DanielX]

I dunno... I don't think the constitution spells them out at all. So probably not, but they aren't so blatantly unconstitutional as, for instance, campus speech codes or handgun bans.

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

If the state its in approves then I'd say yes. If the government just goes ahead and sets up a "preserve" or military base w/out the states expressed permission then I'd have to definately say "no".

[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.

[opebo]

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.

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

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Hah, for that matter aren't they usually matters for municipalities, not states?  There is nothing 'inherently local' about parks, and your suggestion that they are 'firmly within the sphere of the states' is just your subjective view based on the fact that you don't like federal parks.

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Sure it does, as parks serve the 'general welfare'. 

[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.

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

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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.

[opebo]

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.

This is quite meaningless.  Any bureaucratic agency will have local offices, and any government operation must take place in a physical locality, regardless of the universality of its effect.  No, the park is not at all a 'local' institution, but rather a cog in the national machine which ensures the well being of the citizenry - the Federal Government.

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

Interesting.  This is how I see the states relative to the federal government.

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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.
[/quote]

Sure, sure.  What good is the constitution then, if it cannot protect basic human rights?  Of course the answer is - not much.

In any case interpretation is always subjective, and in your case perhaps you don't care much for the rights of women, but bear a particular grudge against the operation of national parks.  To each his own, just don't pretend objectivity.

[A18]

1. 'General Welfare' extends only to those national things that are outside the sphere of state government.

2. That's not how the Constitution sees states relative to the federal government.

3. The value of the Constitution is irrelevant to what it says. Interpretation is very objective when you adhere to the original meaning of the text.

[opebo]

1. 'General Welfare' extends only to those national things that are outside the sphere of state government.

Clearly parks which may be visited by any americans, not just citizens of a particular state, are part of the 'general welfare'.

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Yes, I am aware of that horrible archaism.

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So if it said that the means of production should be owned by the State it would be of equal 'value' to your subjectivity?

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No, one is interpreting the 'original meaning' as well.

[A18]

Uh, no, clearly they are not. You don't understand how the word 'general' was used at the time the Constitution was written, and should really quit pretending otherwise.

Would it be of equal value to me? No. But that would not change what the document so clearly says.

You don't seem to understand the difference between 'interpretation' and 'making things up.' I have to interpret your posts to respond. Interpretation is clearly very objective; that's how people communicate.

[opebo]

Uh, no, clearly they are not. You don't understand how the word 'general' was used at the time the Constitution was written, and should really quit pretending otherwise.

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.  Even ephemeral things like principles require a legal system with physical machinery located in specific places to put it into operation.

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You think we all understand one another clearly?  I'd say that 'making things up' is a significant part of any interpretation.

[A18]

"General" means more than being open to the nation, as Emsworth and I have explained several times. It means national, as distinguished from local: those national things outside the sphere of the states.

We understand each other very clearly.

[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.

[jimrtex]

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.

Would operation and ownership of the Gettysburg National Military Park fall inside or outside of the general welfare of the United States?  Were it not for the events of 1863, there might not even be a 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.

[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.

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

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.

I actually would prefer such parks, etc to be run by private preservation groups. They largely do a much better job then the state or federal government as they can focus more on one specific park then hundreds of parks all over the USA.

[MODU]

I would have to say yes.  Most of the lands which are now national parks were not owned by private individuals at the time they became parks.  And while states are the care-takers of the land, the states are a part of the government, and the government has the right to decide the purpose of unused land within the country.

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

I would have to say yes.  Most of the lands which are now national parks were not owned by private individuals at the time they became parks.  And while states are the care-takers of the land, the states are a part of the government, and the government has the right to decide the purpose of unused land within the country.

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.

[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.

[ATFFL]

I would have to say yes.  Most of the lands which are now national parks were not owned by private individuals at the time they became parks.  And while states are the care-takers of the land, the states are a part of the government, and the government has the right to decide the purpose of unused land within the country.

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.

This is pretty much my stance.  If the state has no objection, the feds can do so.  The state willfully giving the power to the feds.

There are advantages to parks being run by the state and advantages to them being run by the feds.  The state gives greater local control and reponse.  The feds give greater uniformity to people who travel to country to visit such parks.

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

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.

Well it could be argued that the "needful buildings" are the visitor centers, bathrooms, gift shops and other stuff. But in general, I've been to quite a few national parks and due to the size of the parks system most buildings and the artifacts contained therein are in poor shape or going to be destroyed through neglect. That's why I prefer private organizations to take charge of such things and from what I notice, as long as local and public support exits, privately run parks are much nicer and have better facilities.

[opebo]

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.

Sure, so this can include things like social security, the income tax, national parks, the army.  It really can include anything whatsoever that provides services to all americans.

[MODU]

State governments are wholly independent of the federal govt.

That's not techically correct.  While states do possess the right to manage themselves, they do answer to the higher authority.  The Confederate states thought they were independent and were proven wrong.  That is why we are the "United" states, not the "50 Loosely alligned" states.  Fortunately, our government is structured to allow balance between state rights and the will of the federal government, so there isn't an overt abuse by either party in this marriage.

[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.

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

  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.