Are national parks constitutional?

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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:
Quote from: Emsworth on October 02, 2005, 10:58:39 am


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.

Quote

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.

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.

Quote

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.

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

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