In a series of cases the Supreme Court has recognized broad, preemptive federal regulatory power over federally owned land. The Court has based these decisions on the combined effect of the property and supremacy clauses of the Constitution. The scope of this power has been the cause of a heated political and legal debate in western states, which contain extensive federal land holdings. A number of legal commentators have argued that the Court's broad construction of the property clause is a misinterpretation of the Framers' intent and that the clause merely grants the federal government proprietary rights over its land holdings. As support for this contention, these commentators cite the land policies of the British colonial administration, the land claims of the states during and immediately after the American Revolution, the public land debates during the drafting and ratification of the Constitution, and the early decisions of the Supreme Court on public land matters. This Article reexamines these early precedents and argues that they support rather than refute the Court's current broad construction of the property clause. The Article concludes that the modern construction is not a break with precedent, but is the continuation of long-settled doctrine.
Eugene R. Gaetke, Refuting the "Classic" Property Clause Theory, 63 N.C. L. Rev. 617 (1985).