The Cliven Bundy Case and State Power

The Cliven Bundy case is a useful example for clarifying some of the arguments that we often hear surrounding the power of government and the rights of individuals and the limits on each.

Bundy Case Ends With Final Sentencing | Drovers
The 2014 Bundy standoff in Nevada

At the outset, we must remind the audience that states do not have rights. People have rights. This is why a people have the right to overthrow a government that is no longer respecting their liberties and rights. While people have rights, states have powers. In a republic form of government, these powers emanate from the will of the people. The more democratic the government, the more its manifested power reflects the popular will.

The individual states that make up the Union have powers delegated to them by the US federal government or reserved to them by the US Bill of Rights. In all cases, the US Constitution is the supreme law of the land. What the federal legislature and executive pass into law or the federal executive decrees by executive order (unopposed by Congress) or a federal court rules stands unless it is overturned by a higher court or superseded by new law. Article Six, Clause 2, of the US Constitution establishes the supremacy of the federal government. We are first citizens of the United States, after that residents of the various states. Bundy’s passport (if he has one or ever will) will identify him as a US citizen. When the South challenged this legal reality by seceding from the Union and establishing the Confederate States of America, the Union settled the question with war.

Congress’s legislative powers are enumerated in Article One, Section Eight of the United States Constitution. The Congress has the power to lay and collect taxes, duties, and imposts. The Congress has the power to call forth the militia to execute the laws of the Union, as well as suppress insurrections and repel invasions. An insurrection, or rebellion, is a violent uprising against an authority or government. The executive of the republic – the president and his agencies – has the authority as delegated by Congress to make regulations and enforce them and put down insurrections.

Here are the relevant facts: Cliven Bundy stopped paying his grazing fees in 1993. He owes the US taxpayer more than one million dollars (he admits to $300,000 of that, so that he owes some amount of money is not in dispute). In 1998, a federal court ordered Bundy to remove his cattle from the federal land, land that is neither his nor Nevada’s. The federal government owns most of the land in Nevada, and when Nevada was granted statehood, it acknowledged in its Constitution the supremacy of the US Constitution. Bundy uses federal land well beyond his family’s roughly 160 acres of land. Against federal and state law, he is grazing his cattle on taxpayer land and refusing to compensate the taxpayer for its use. Bundy has defied the law for more than 20 years. Twenty years is a lot of patience on the part of the federal government.

Bundy’s refusal to follow the law and his defiance of authority, and the rallying to his side by armed extremist elements in America’s right wing, is insurrection. To be sure, the government stood down in the face of rebellion to avoid violence, but it has the authority under the rule of law to act with armed force. That it has not—and has let the issue go for so long—testifies to the deference the US government, whether governed by Democrats or Republicans, routinely shows wealthy citizens.

One of the great ironies in American politics is that those who most aggressively champion the US Constitution and the American Republic are often the ones most likely to champion the neoconfederate position of states rights. But a person can’t have it both ways. Either one recognizes the legitimacy of the United States government or one doesn’t. And while it is not necessarily wrong to withdraw one’s recognition of the legitimacy of the any government and its laws (that is one’s right), whether one has just cause to do so depends on the reasoning—and, in any case, withdrawal of consent cannot make the person immune from the enforcement of the laws of the land.

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Andrew Austin

Andrew Austin is on the faculty of Democracy and Justice Studies and Sociology at the University of Wisconsin—Green Bay. He has published numerous articles, essays, and reviews in books, encyclopedia, journals, and newspapers.

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