Don’t recognize the federal government? Then don’t wave its flag

This column is a little wonky. I’ll try to hold your attention to the end, but if I don’t, you can sign off at any time.

No harm, no foul.

A cattle rancher in the state of Nevada, Cliven Bundy, has been in the news recently. He’s been grazing his cattle on federal public land without paying federal grazing fees for the past 10 years or so. The government says he owes about $1 million by now, and the feds are taking steps to confiscate his cattle for non-payment of fees.

Mr. Bundy says he doesn’t have to pay. He says he has a right to graze his cattle on public land for free. And what’s more, he says he doesn’t recognize the federal government anyway — the state of Nevada and its local subdivisions are the only governments that he admits to.

Some of his neighbors, and others who think like him, have gathered around him, some of them threatening violence if officials try to enforce federal grazing laws.

He and his supporters make a point of flying the American flag, and they claim allegiance to the U.S. Constitution in making their arguments.

That’s a common theme among Americans who think like Mr. Bundy.

That’s ironic.

There are at least two centuries of precedents for federal authority to trump the power of the states, and the Constitution makes that point explicitly.

Article VI of the Constitution contains the “Supremacy Clause” of that document. The relevant words state the following:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land, and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Can’t get much clearer than that.

The federal government created the state of Nevada in 1864 during the Civil War. That’s another irony, since that war made clear in another way that the federal government is superior to states’ rights.

Maybe Mr. Bundy thinks the Confederacy had the better of the legal argument, but that’s not how it worked out, and the Supreme Court, Congress and the president all took steps to reinforce federal supremacy at that time and since.
The Civil War wasn’t the first attempt to thwart federal power in the U.S.

Several times in the years preceding that conflict, theories of state supremacy arose. In 1828, for instance, South Carolina declared the right of state nullification of federal laws, in opposition to a federal tariff. But that so-called “right,” like others similarly declared, failed to be recognized on a national level.

States-rights advocates point to the 10th Amendment to the U.S. Constitution, which says that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The federal court system, including the Supreme Court, has never denied the legitimacy of that amendment. But it has broadly defined those federal powers and coupled them with the Supremacy Clause to maintain a strong national government.

The U.S. federal system has served the nation well for the past 225 years.

State governments do have powers in some areas, and have served as “laboratories of democracy” in innovative ways.

But free grazing of federal lands is not a power that a state or an individual can claim.