©2014 By ILANA MERCER
A writer for The Atlantic has faulted Nevada rancher Cliven Bundy, who is in mutiny against the federal government, for his interpretation of states’ rights. No wonder. The progressive magazine’s scribe views states’ rights much as the Beltway-based lite libertarian would—he thinks that the division of powers between state governments and the federal government has left the states in charge of pot, poker and porn. The proper expression of “genuine states’ rights,” opines The Atlantic, is passing “permissive laws on divorce, gambling, and prostitution,” “abortion and same-sex marriage.”
I guess cleaving to a somewhat frivolous notion of states’ rights is better than framing a conflict that has roiled the country as no more than a local skirmish. The last bit of casuistry belongs to the Washington Post.
Farmer Bundy is no lifestyle libertarian; he’s a hardcore libertarian—a libertarian who rejects federal authority over state land and does not recognize the federal government. Bundy faced down the goons from the federal Bureau of Land Management. They had come to steal his livestock, in lieu of back taxes the BLM claims the rancher owes it since 1993, which was when Bundy stopped paying grazing fees.
The Bundys of Bunkerville, Nevada, had homesteaded the disputed land, southwest of Mesquite, in 1877. Bundy’s forefathers had lived off the land well before the Bureau of Land Grabs came into being. The feds subsequently passed laws usurping Bundy’s natural right to graze his cattle. The elderly rancher offered the following rejoinder: “‘I have raised cattle on that land, which is public land for the people of Clark County, all my life. Why I raise cattle there and why I can raise cattle there is because I have preemptive rights,’ among them the right to forage.”
BOTH SIDES SIDE WITH THE STATE, AND AGAINST THE NATURAL LAW
“Everybody else is paying their grazing fees,” intoned Democratic strategist Donna Brazil. “He should pay his fees as well.” With some variation, that’s the standard line from both political factions. However, from the fact that “everybody else” is paying the mafia for fear of being kneecapped—it doesn’t necessarily follow that “everybody” should fork over shakedown fees.
For their part, conservatives have not disputed the state’s case; they’ve merely argued an excessive use of force by the federal government. Fox News’ Britt Hume cringed when questioned about Bundy, whose disobedience he vehemently denounced. The feds have the law on their side, pondered anchor Megyn Kelly. How could they have gone so wrong while being so “right”? So too was the libertarian-leaning Tucker Carlson adamant that the Bundys didn’t have a legal leg to stand on. The woefully misguided Mr. Carlson purported to alert dissenters to “the essence of private property” and the principles that “undergird conservatism.” “This land does not belong to [the Bundys],” he asserted. Let Bundy buy his own.
Lectured Bill O’Reilly: “The government has a right to put a lien on Bundy’s property.” Correction: Government has the power to put a lien on Bundy’s property. Whether it has the right to so do is far from established. And therein lies the rub: The government has a monopoly over making and enforcing law— it decides what is legal and what isn’t. Thus it behooves thinking people to question the monopolist and his laws. After all, cautioned the great Southern constitutional scholar James McClellan, “What is legally just, may not be what is naturally just.” “Statutory man-made law” is not necessarily just law.
Naturally, and without knowing it, Bundy speaks the language of natural law. His case against the federal occupier, moreover, cannot stand or be understood without reference to a free man’s natural, unassailable right to own himself and that which sustains his life, free of unprovoked aggression.
NO SUCH THING AS ‘GOVERNMENT GRASS’
Unlike the positive law, which is state-created; natural law in not enacted. Rather, it is a higher law—a system of ethics—knowable through reason, revelation and experience. “By natural law,” propounded McClellan in “Liberty, Order, And Justice,” “we mean those principles which are inherent in man’s nature as a rational, moral, and social being, and which cannot be casually ignored.”
Tamara Holder, another Democrat, grasps the natural law not at all. “Can I go into your house and steal stuff; can I trespass onto your land?” she hollered at Sean Hannity. Holder, of course, was implying that the disputed land belonged to the state and was as good as the government’s house.
In siding with the heroic homesteader against the BLM, Mr. Hannity’s heart is in the right place. He and Fox News colleague Greta Van Susteren probably staved off a Waco-style massacre, in Bunkerville. When the militarized BLM, SAWT teams and all, trained sights on the Bundy family and their supporters; the two turned the cameras on the aggressors, who then retreated. In the course of butting against buttheads like Holder, however, Mr. Hannity has refused to engage his head. (The anchor, moreover, is performing no public service when he gives this and other prototypical TV tarts a platform from which to spread ignorance.) Ms. Holder: the government doesn’t have a house. There is no such thing as “government grass”! Not in natural law. Government cannot morally claim to own “public property,” explain Linda and Morris Tannehill, in “The Market For Liberty.” “Government doesn’t produce anything. Whatever it has, it has as a result of expropriation. It is no more correct to call the expropriated wealth in government’s possession property than it is to say that a thief rightfully owns the loot he has stolen.”
Then there is the matter of logic. “The public” is an abstraction. In logic, an abstraction cannot possess property. To borrow from libertarian political philosopher Murray Rothbard, “There is no existing entity called ‘society’—there are only interacting individuals.” To say that “society” should own property in common is essentially to say that “government bureaucrats” should own property, in our case, at the expense of the dispossessed homesteader.
Nowhere in the course of this piss-poor debate about the vanishing private-property rights of Cliven Bundy has John Locke’s thinking on the homesteading of property been mentioned. According to The Stanford Encyclopedia of Philosophy, “John Locke (1632–1704) is among the most influential political philosophers of the modern period,” whose “treatment of property is generally thought to be among his most important contributions in political thought.” Locke’s philosophy of natural rights informed the Founding Fathers’ ideas about the natural rights to “life, liberty, and estate.” Locke’s natural-rights doctrine found expression in the Declaration of Independence—the preamble, in particular—and in the thought of Thomas Jefferson.
Property, argued Locke, in “Two Treaties of Government,” begins in “the taking of any part of what is common, and removing it out of the state Nature.” When life-sustaining resources are in their natural state, “there must of necessity be a means to appropriate them some way or other before they can be of any use, or at all beneficial, to any particular men.” “And the taking of this or that part does not depend on the express consent of [mankind].”
Thus, “The fruit or venison which nourishes the wild Indian, who knows no enclosure, and is still a tenant in common, must be his, and so his—i.e., a part of him, that another can no longer have any right to it before it can do him any good for the support of his life,” contended Locke. And, “the grass my horse has bit, the turfs my servant has cut, and the ore I have digged in any place, where I have a right to them in common with others, become my property without the assignation or consent of anybody.” (Chapter 5: “Of Property”)
At the very least, Cliven Bundy possesses indisputable prescriptive rights to the land. A form of homesteading, prescriptive rights come about through protracted use of an unused tract of land.
Whether arrived at through reason or revelation—whichever floats your boat—natural law is the highest law known to man. It is anchored in the very existential nature of man and is therefore a priori just. To go by the once-proud Western tradition of natural law—it originated with the ancient Hebrews and Greeks—the government most certainly does not own the Clark County land that sustains rancher Bundy’s livestock, and, by extension, his life.