Cliven Bundy and Popular Sovereignty

If you’ve been following the ranchers’ fight against the federal government and seen the latest news that armed ranchers have come to the aid of Cliven Bundy to keep the Bureau of Land Management from seizing his cattle grazing on federal lands, you will have noticed some commentators who praise their stand as a kind of “civil disobedience” (the National Review has even compared Bundy to Gandhi!). Others–including Senate Majority Leader Harry Reid–say Bundy is engaged in simple lawlessness, as he’s not paid ranching fees for decades and is flouting multiple federal court orders. Either answer, of course, is too simplistic.

In fact, the Bundy standoff is best understood as an organized effort to assert popular sovereignty.  But what kind of theory of power and community does the saga represent? In my quick and dirty take (subject to further refinement), rancher sovereignty appears to be a combination of the legacy of pioneer constitutionalism, a tactical resort to states’ rights, and a healthy dose of contemporary radical localism.

The aspect of rancher sovereignty that has received the most media attention is states’ rights. In some of Bundy’s statements, he has said that the land belongs to Nevada, but notice that it’s always done to undermine the federal government’s claim to the land.  He probably does believe that, relatively speaking, the state has more of a claim to the land than the feds. However, the rest of his statements and actions suggest he is only tactically relying on states’ rights.

In fact, rights foundationalism is most important to rancher sovereignty. Bundy contends that his family has made productive use of the land since the 1880s, and the fact that his labor has mixed with the land gives rise to a fundamental liberty/property right to continue using that land as he sees fit. That individual right, he asserts, trumps countervailing federal law and the Nevada State Constitution (to the extent it recognizes the supremacy of federal law). This sounds bizarre to anyone who has taken Constitutional Law I, but I assure you that this conception of rights is fairly widely shared. It derives from a natural law view of rights, one that has been deeply inflected by the American frontier experience. The belief system once made sense in the world inhabited by ranchers living on open lands, when legal rules were openly flouted and productive use of land could ripen to legal title.

Moreover, there is a strong dose of radical localism.  Apparently, having lost repeatedly in the federal courts, he has turned to filing documents with not only state officials, but also the Clark County Sheriff, county commissioners, and even the district attorney.  These documents give emergency notice of a “range war against the police state” and demand the protection of state and local laws against the power of the national government.  Bundy states:

First I’m fighting this thing on paper. Then I’ll go after the contract cowboys. And then if I assume they’re (BLM) ready to go (confiscate the cattle) then I’ll go after them with the media, with ‘we the people’ and whatever else it takes….What I am organizing are lots of groups. They’ll come from hundreds of miles away. They’ll be multiple users; the hunters, campers, off-roaders, miners, sightseers, Tea Party people.

But it’s clear to Bundy that the sheriff is the most important actor in this constitutional theory. “The sheriff is the only one with the policing power and arresting power in Clark County,” he states. “The Clark County sheriff has more constitutional policing power in Clark County than the president of the United States and his army.”

Again, this statement will look absolutely ridiculous to anyone who practices law in the courts, as it inverts the entire structure of government created by the 1787 Constitution.  But that’s the point of the ideas of radical localism that persist among some members of the Tea Party, Patriot movement, and those who call themselves “sovereign citizens.”  Elevating the sheriff is the best way to subvert the hierarchical features of mainstream constitutionalism.  According to this theory of government, the county sheriff (not the U.S. Attorney General) is the highest law enforcement officer.  Some practitioners try to tie this view to older historical accounts of the township and shire; others are content that the sheriff evokes older American rule of law traditions.  Bundy himself in one interview has said he and his supporters refuse to accept the authority or jurisdiction of the BLM–and may even go so far as to deny the legitimacy of the federal government as a whole.

I said earlier that Bundy’s reliance on states’ rights was largely tactical, but there are tactical benefits to radical localism as well.  The approach aligns seamlessly with practical efforts to subvert the conventional constitutional order by taking over key local offices through elections and, failing that, appointing oneself as sheriff and deputizing true believers.

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16 Responses

  1. Brett Bellmore says:

    ” The belief system that once made sense”

    And which a lot of people still think makes sense; Although the government has exempted itself from the doctrine of averse possession, were any other land holder involved, this would be virtually open and shut.

    There’s no question Bundy is in the wrong legally, which is to be expected when in conflict with the entity writing the laws. But, what he’s doing is challenging the federal government on the level of legitimacy, not legality. And on that level the conflict may be more even than most of the federal government’s defenders would like to acknowledge.

    For my part, I’m more than a little concerned that the federal government seems to have forgotten the lesson it learned from Ruby Ridge and Waco, and be falling back into the pattern of behavior which drove the rise of the militia movement. Dangerous to do when the average citizen already doubts the government is really legitimate, and views it as a threat to their liberty.

  2. Brett Bellmore says:

    Think I’d really like to respond to this, too: ‘as it inverts the entire structure of government created by the 1787 Constitution.”

    Nah, what it inverts is the structure that government has been converted to. Look, the 1787 constitution created a federal government which lacked the general police power, except on land it was expected to buy with the permission of state governments.

    “To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;”

    That’s how the Constitution of 1787 expected the federal government to own land: By buying it within states, with the permission of the state legislature. It certainly did not envision a situation where the federal government would end up owning most of the land within a state. And, if you look at the percentage of federal land in various states, you’ll see that essentially all the “double digit” federal land ownership states were admitted after about 1850. States admitted before that date, even states created out of land the federal government had purchased from foreign powers, have negligible levels of federal ownership, because the federal government didn’t hold onto that ownership when the state was created. Because that wasn’t seen as the sort of thing it was supposed to do.

    The Bundy standoff could not happen in most of the nation, could not happen in the nation the Constitution of 1787 created, because in THAT nation, the land wouldn’t have been federally owned. Bundy wouldn’t have to run cattle on federal land, because there’d be enough private land to run them on.

    So, please, don’t pretend the current situation is due to the constitution of 1787. It’s due to what that constitution has been perverted into, by people who didn’t like it.

    Personally, I was thrilled to see him get this temporary victory, though they’ll doubtless find some way to destroy him in time. I wonder if they’ll be shocked by the public reaction when they do that, though?

  3. Cid Sinclair says:

    Doesn’t the fact that, up until 20 years ago, the guy had paid his land use fees matter. I would also think that the legal theory would be that he accepted the terms and then decided to break that agreement thus negating his “squatters rights”. It’s not as if his family had been using these lands unabated all along. The fact that he owes the Feds over a million dollars in fees makes him nothing more than a criminal stealing the taxpayers resources. If he doesn’t like the law, he should call hid congressman or run for office himself. All of this “state’s rights” crap is nothing more than an attempt to try to protect his wallet. His legal fees will far exceed the land use fees he should have just paid. The guy is an idiot and a criminal. I wish people would stop trying to justify him as anything else. Certainly, he’s not a Patriot….

  4. Brett Bellmore says:

    I think the response would be that, about 20 years ago, the BLM set out to drive all the cattle ranchers in Clarke county out of business, by jacking up the fees and regulations to the point where nobody could afford to pay them and/or comply with them. Bundy is the only cattle rancher left in Clarke county, because he’s the only one who refused to pay the increased fees.

  5. dht says:

    I don’t know how much BLM charges in grazing fees, or how much they raised them 20 years ago. I would be interested to know how the government grazing fees compare with commercial grazing fees. Conservatives say the government should be run more like a business. Does that hold true when the government tries to charge market rates for the use of grazing lands?

  6. Joe says:

    Brett (I use him since he’s here, but he cites a p.o.v. out there) looks beyond the actual text (though he quotes A portion of it to fit his framing) to how it was “understood” or “seen” at a certain point of time. As Madison et. al. noted, what the Constitution’s text would be “seen” to cover would change over time, including as experience and changing needs made the specific understandings change. See, e.g., what was “seen” as the proper thing to do with a national bank. Or, how interstate commerce or equality (e.g., interracial marriage being a constitutional right even though the ratifiers of the 14A as a whole were perfectly fine with it not being one) is understood.

    The conflict here involved land in Nevada. Brett references “1850.” Nevada is a part of the country that came as a result of the Mexican War as well as a range of land quite different from the states entered before then. A thinly populated large area of land like Nevada is different from the likes of Alabama or the old Northwest. Likewise, the federal government grew in size and power as the 19th Century went on. The 1860s and ’70s was significantly different here in various ways than the 1810s. The proper federal control of the territories was a major antebellum debate — see, e.g., the two sides in Dred Scott.

    This is not about “perversion.” It is about complex debates that have been around for centuries. Debate the merits, fine. Some find that too hard. One side isn’t merely wrong. They are illegitimate. They are “perverts.” This is an age old debate, really. People damned as illegitimate squatters, e.g., who think they have a natural right to be there since they made productive use of land, etc., was an issue in various ways for years before there was a Constitution.

    The idea that “popular sovereignty” includes challenging the federal government officials that the people of the U.S. ultimately authorized to act this way via laws passed by Congress (who voted them in again?) and administrators ultimately governed by Cabinet heads chosen by the President (who voted him in again?) here sounds a bit off, but it’s nothing new under the sun. As is one side calling the other illegitimate per preconceived “seens.”

  7. Joe says:

    I’d note that the specific conflict might be conservative or libertarian in nature, the ultimately challenge need not be. Squatters in some inner city building might get some support from the left or socialists. As to “1787,” the government having their own rules goes back to then to, including immunity. The people have challenged that and sometimes they have morality on their side, so “high law” battles again can go in more than one direction here.

  8. Brett Bellmore says:

    Hey, was I the one who originally cited the 1787 constitution to defend something which would have outraged the people who wrote and ratified it?

  9. Robert Tsai says:

    When I say that the ranchers’ popular constitutional theory inverts the structure envisioned by the Framers, I mean that the supremacy of federal law is explicitly stated in the 1787 Constitution (Article VI) and inherent in the original design. Ensuring the supremacy of federal law is also a major–some would say the major–impetus for a new constitution. So by denying this principle, Bundy and other practitioners of radical localism reject the supremacy of federal law. They also privilege local institutions like county officials and sheriffs, who they claim enjoy superior authority when jurisdictional conflicts arise–there is simply no support for that in the original Constitution and it should be easy to see why such a move undermines the idea of federal supremacy.

    Brett, the language you quote from the Enclave Clause of Article I, section 8, is about creating a federal space for the seat of government that no state can interfere with (an area “not exceeding ten square miles”). It is not a general statement of how the federal government must acquire land or a restriction on how much land it can acquire or govern.

    Now, it is true that the rancher theory of popular constitutionalism I have sketched finds its structure by railing against not only the actual language of the Constitution, but also the body of interpretations, orders, bureaucratic actions, and culturally-inflected understandings that make up mainstream constitutional law. This fact–that popular legal theories have many sources and different points of antagonism–doesn’t seem to undermine my central point about the subversive quality of the ranchers’ theory of fundamental law.

  10. Robert Tsai says:

    I agree with Joe that squatting, states’ rights, and radical localism can be used for different ideological purposes and policy objectives. Activists on the left have, on a number of occasions, deployed such arguments. In my book, I analyze the legal theories of the Icarians, nineteenth century socialists who took advantage of some of these ideas to create an alternative constitution-based society in the Midwest. The followers of Malcolm X who proposed the Republic of New Afrika, which I also discuss, similarly reuse some of these concepts in envisioning a new society based on cooperative economics and reform of the criminal justice system.

  11. Brett Bellmore says:

    The supremacy of federal law over a short list of topics, with an amendment to underline that the list was exhaustive. Where on that list is cattle ranching? Nowhere. The Constitution, as immediately amended, gives the states supremacy over every area not assigned to the federal government.

    ” It is not a general statement of how the federal government must acquire land or a restriction on how much land it can acquire or govern.”

    Yes, actually it is, as the language itself, and the controversy over the Louisiana purchase, confirms. Part of the language has to do with D.C., the rest to do with other purchases. They created a system where if the federal government wanted some land for a specific purpose, it needed a state legislature’s permission to buy it. I wonder how long it has been since the federal government even bothered to seek that permission?

    As I say, the federal government is fighting this on the level of law, and can reasonably be expected to prevail on that level, because it writes the laws. But Bundy is fighting this on the level of legitimacy, not law, and the federal government is doing really badly on that level. I can easily see the federal government winning in it’s own courts, and losing still more legitimacy, because it does not care to acknowledge that it’s legitimacy is slipping away, and so can’t bring itself to do anything to retrieve it.

  12. Robert Tsai says:


    You make a fair point about the “like authority” language including other acquisitions of land through “purchase.” But in no way does the language of the clause limit the ways in which the federal government can acquire land. Two other ways have been deemed valid–when a state cedes land to the federal government and when, at the time of admission to the Union, the federal government reserves land as a condition of a state’s admission.

    The land that Bundy’s cows are grazing on is lawful property of the federal government based on the third approach. In the Nevada Constitution, “the people . . . do agree and declare, that they forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States”

    Bundy doesn’t like this language in the state constitution, but it’s not unconstitutional unless the Enclave Clause is read in the highly restrictive way you suggest. To read non-exclusive language that way after all these years would have major consequences for the legitimacy of federal ownership of land and federal policy throughout the country.

  13. Brett Bellmore says:

    “and when, at the time of admission to the Union, the federal government reserves land as a condition of a state’s admission.”

    An extra-constitutional addition, which was not understood to be part of admission to statehood until the 1850’s.

    “To read non-exclusive language that way after all these years would have major consequences for the legitimacy of federal ownership of land and federal policy throughout the country.”

    Precisely. Since legitimacy is something which exists in the minds of citizens, and not just as rulings in a court, it has that consequence even if the courts don’t adopt that reading, if enough of the people do. And, can you blame people in states which were subject to that condition you mention for being pissed off about it, when most of the nation does NOT have to deal with the consequences, not having been subject to it?

    The big issue here, is that the federal government’s legitimacy problem is just going to keep getting worse and worse, so long as it takes that legitimacy for granted, and assumes that it can do anything it wants, so long as it’s own courts say it’s ok. The government can put Bundy out of business, and likely imprison or even kill him, and the federal government itself will rule that this was alright to do.

    But should it assume it’s own opinion is the only one that matters, even if it’s the only opinion that has the force of law?

    Like I said, Bundy is fighting on a different level than the government is, and the government can win on it’s chosen level, and still lose on Bundy’s.

  14. Brett Bellmore says:

    Looks like Bundy isn’t doing too bad:

    Western lawmakers gather in Utah to talk federal land takeover