Speaking Truth to Illegitimate Power

Speaking Truth to Illegitimate Power
November 18, 2015
Bill Howell
The Boston Tea party of 1773 was a protest against “taxation without representation.”  The battles at Lexington and Concord were, in part, resistance to the “Intolerable Acts” of 1774.  These were acts of the British Parliament which revoked the historic right of self-government in the Massachusetts Colony and placed that power in the hands of a governor appointed by and answerable only to His British Majesty.  Mahatma Gandhi employed what he called polite insistence on the truth to win Indian independence from British hegemony.  Gandhi’s tactics inspired civil rights and freedom movements around the world including the American civil rights movement of the 50′s and 60′s.  The common thread in these popular movements is opposition to unjust and/or immoral power by a few on behalf of their larger community. Along their way, those who have dared to challenge the legitimacy of a centralized power have been punished and branded as “criminals” by those who wield this power.
In San Juan County, Utah, the Bureau of Land Management issued a “decision” to close an area to unauthorized off road use. This area included a county claimed vehicular right-of-way.  County Commissioner Phil Lyman and City Councilman, Monte Wells, have been convicted of trespass for having inspired a protest ride to the end of a pipeline laying within this vehicular right-of-way.  Lyman and Wells have been vilified by federal prosecutors as “criminals.”  Their punishment is pending.  Their non-violent act differs in no significant respect from the acts of American patriots in the 1700′s, from Gandhi in the early part of the 20th Century, or from the acts of lunch counter sitters in the 50′s and 60′s. How so? one might ask.
To answer this question, we need only consider, first, the extent of a state’s right to exercise sovereignty and jurisdiction over the lands within its borders and, second, the moral obligation of the United States to honor its contracts.
As to a state’s right to exercise sovereignty and jurisdiction over the land within its borders, the U.S. Supreme Court, in 1845, said that under the Equal Footing Doctrine new states are entitled to exercise those powers over all of the land within their borders including the public lands with only two exceptions.  New states may not tax the public lands and they may not interfere with their disposal by Congress.  As to the obligation of contracts, the U.S. Supreme Court has said that “a grant is a contract executed” and that the granting party is “estopped by his own grant.”  In the same tone, Alexander Hamilton said that when a government enters into a contract it “deposes its constitutional authority” and exchanges the character of legislator for that of “a moral agent with the same rights and obligations as an individual.”  In 1866 Congress expressly “granted” by statute the right to construct highways over public lands not reserved for public purposes.  In 1976 Congress presumes to have revoked the 1866 grant.  Yet, in a just world, if the Court and Hamilton are correct, the right granted in 1866 is “a contract executed” and, therefore, irrevocable.  This means that the states remain empowered under the grant to construct highways over unreserved public lands; and the right to construct highways certainly implies the right to use and to maintain them.
This brings us back to the circumstances in San Juan County.  Commissioner Lyman and Councilman Wells are asserting the sovereign territorial rights of the State of Utah which include the right of the state, under the irrevocable grant, to construct, use, and maintain highways over unreserved public lands.  The public lands at issue in the San Juan case are unreserved.  At a minimum, then, it is arguable that the federal position closing the vehicular right-of-way is as unjust and as immoral as the tyrannical “Intolerable Acts” issued against the colony of Massachusetts in 1774, the denial of independent sovereignty to the Indian sub-continent in the early years of the last century, and the denial of equality on the basis of race.  In this light, the actions of Commissioner Lyman and Councilman Wells are as honorable and as patriotic as the acts of the Minutemen at Lexington and Concord, of Gandhi in India, and of civil rights marchers in the United States.  Like those who have gone before them, Lyman and Wells and the other 300 people who participated in this protest have done nothing less than stand for the rights of the larger community of citizens of San Juan County and of the State of Utah as a whole.  They stand against a modern-day tyranny that denies our territorial sovereignty as well as the solemn obligations of contract.