Statehood Howell & Redd

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Transcript of Statehood Howell & Redd

  • 1. Originalism or a Living Constitution?Our thesis is based upon constitutional originalism" meaning "first constitutional principles."

2. The security of a people against the misconduct of their rulers, must lie in the frequent recurrence to first principles, and the imposition of adequate constitutional restrictions. Fletcher v. Peck, 10 U.S. 87, 1810 Also: Patrick Henry, Benjamin Franklin, and the Utah Constitution 3. STATEHOOD: THE TERRITORIAL IMPERATIVE 4. Part I: Origin and Objects of the Federal Territorial System Part II: Incorporation of the Public Land Trust and into the U.S. ConstitutionPart III: Equal Footing Among the States Part IV: State Enabling Act CompactsPart V: Where did we go wrong? 5. First, we must define our terms - Voltaire Within the context of this presentation:Territory federally held land that has yet to become a state; subject to federal maritime and territorial jurisdiction; outside of constitutional law Public Lands federally held land within a state that is subject to disposition; formerly under constitutional law, now under federal maritime and territorial jurisdiction Federal Land Federally held land within a state that is NOT subject to disposition; under federal maritime and territorial jurisdiction Sovereign or Sovereignty Subject to no other jurisdiction; the ability to rule in the final analysis 6. Part I: Origin and Objects of the Federal Territorial System 7. Part I: The Origin and Object of the Federal Territorial System 8. INTERSTATE CONFLICTS - Conflicting, overlapping land claims - Hostile division among the States at the same time they were fighting the British - Maryland was refusing to sign the Articles of Confederation since they were land-locked and could not compete with the larger States to the West that were making these land claims. - This conflict between the States was an extreme embarrassment to the Continental Congress. 9. The Continental Congress of the United States: 1774 -1789:- A convention of appointed ambassadors or delegates and not elected representatives. - Had little to no authority to compel the States - Attempted to resolve the divisive land dispute raging between the States. 10. Resolution of Congress of September 6, 1780:On this date, a committee of the Continental Congress prepared a resolution which implored those States that were asserting claims to western "wastelands" to cede those claims to the Congress. 11. Resolution of September 6, 1780 continued:The congressional committee stated that such cessions would "remove the embarrassments respecting the Western country."These cessions, the committee continued, are "essential ... to our very existence as a free, sovereign, and independent people," and they are "necessary to the happy establishment of the Federal Union." 12. Resolution of September 6, 1780 continued:The resolution of the committee requested that the land claiming States: "pass such laws, and give their delegates in Congress such powers as may effectually remove the only obstacle to a final ratification of the articles of confederation; and that the Legislature of Maryland be earnesly (sic) requested to authorize their delegates in Congress to subscribe the said articles." (Note that there was no indication in the resolution as to what the Congress intended to do with the land once it was ceded. Only New York ceded its land claim at this time.) 13. Resolution of Congress of October 10, 1780:On this date, Congress restated its resolution of September 6th. With this revised resolution, Congress stated precisely what it would do with the lands if the States would comply with the cession request. This resolution reads as follows: 14. (1) "Resolved, That the unappropriated lands that may be ceded or relinquished to the United States, by any particular states, pursuant to the recommendation of Congress of the 6 day of September last, shall be granted and disposed of for the common benefit of all the United States that shall be members of the federal union, (2) and be settled and formed into distinct republican states, (3) which shall become members of the federal union, and have the same rights of sovereignty, freedom and independence, as the other states: that each state which shall be so formed shall contain a suitable extent of territory, not less than one hundred nor more than one hundred and fifty miles square, or as near thereto as circumstances will admit: and that upon such cession being made by any State and approved and accepted by Congress, (4) the United States shall guaranty the remaining territory of the said States respectively. ..." (5) "That the said lands shall be granted and settled at such times and under such regulations as shall hereafter be agreed on by the United States in Congress assembled, or any nine or more of them. 15. The Resolution of the Continental Congress of October 10, 1780 is where the federal trust obligation with respect to federal territories and public lands began. For this reason, we cannot understand the federal trust obligation with respect to these lands unless we fully understand this resolution.So, lets consider the Resolution provision by provision: 16. (1) "Resolved, That the unappropriated lands that may be ceded or relinquished to the United States, by any particular states, pursuant to the recommendation of Congress of the 6 day of September last, shall be granted and disposed of for the common benefit of all the United States that shall be members of the federal union, (2) and besettled and formed into distinct republican states, (3) which shall become members of the federal union, and have the same rights of sovereignty, freedom and independence, as the other states: that each state which shall be so formed shall contain a suitable extent of territory, not less than one hundred nor more than one hundred and fifty miles square, or as near thereto as circumstances will admit: and that upon such cession being made by any State and approved and accepted by Congress, (4) the United States shall guaranty the remaining territory of the said States respectively. ..." (5) "That the said lands shall be granted and settled at such times and under such regulations as shall hereafter be agreed on by the United States in Congress assembled, or any nine or more of them ...." 17. (1) "Resolved, That the unappropriated lands that may be ceded or relinquished to the United States, by any particular states, pursuant to the recommendation of Congress of the 6 day of September last, shall be granted and disposed of for the common benefit of all the United(2) and be settled and formed into distinct republican states, (3) which shallStates that shall be members of the federal union,become members of the federal union, and have the same rights of sovereignty, freedom and independence, as the other states: that each state which shall be so formed shall contain a suitable extent of territory, not less than one hundred nor more than one hundred and fifty miles square, or as near thereto as circumstances will admit: and that upon such cession being made by any State and approved and accepted by Congress, (4) the United States shall guaranty the remaining territory of the said States respectively. ..." (5) "That the said lands shall be granted and settled at such times and under such regulations as shall hereafter be agreed on by the United States in Congress assembled, or any nine or more of them ...." 18. (1) "Resolved, That the unappropriated lands that may be ceded or relinquished to the United States, by any particular states, pursuant to the recommendation of Congress of the 6 day of September last, shall be granted and disposed of for the common benefit of all the United States that shall be members of the federal union, (2) and be settled and formed into distinct(3) which shall become members of the federal union, and have the same rights of sovereignty, freedom and independence, as the other states: that each state which shall be so formed shall contain a suitable extent of territory, not less than one hundred nor more than one hundred and fifty miles square, or as near thereto as circumstances will admit: and that upon such cession being made by any State and approved and accepted by republican states,Congress, (4) the United States shall guaranty the remaining territory of the said States respectively. ..." (5) "That the said lands shall be granted and settled at such times and under such regulations as shall hereafter be agreed on by the United States in Congress assembled, or any nine or more of them ...." 19. (1) "Resolved, That the unappropriated lands that may be ceded or relinquished to the United States, by any particular states, pursuant to the recommendation of Congress of the 6 day of September last, shall be granted and disposed of for the common benefit of all the United States that shall be members of the federal union, (2) and be settled and formed into distinct republican states, (3) which shall become members of the federal union, and have the same rights of sovereignty, freedom and independence, as the other states: that each state which shall be so formed shall contain a suitable extent of territory, not less than one hundred nor more than one hundred and fifty miles square, or as near thereto as circumstances will admit:and that upon such cession being made by any State and approved and accepted by Congress, (4) the United States shall guaranty the remaining territory of the said States respectively. ..." (5) "That the said lands shall be granted and settled at such times and under such regulations as shall hereafter be agreed on by the United States in Congress assembled, or any nine or more of them ...." 20. (1) "Resolved, That the unappropriated lands that may be ceded or relinquished to the United States, by any particular states, pursuant to the recommendation of Congress of the 6 day