even the justice of the title to the public lands on the part of the federal government, and
the additional security, which it gave the Union, overcame all scruples of the people, as to
its constitutional character.”
The denial that property rights constituted a component of
state equality permitted continued congressional oversight of the public lands in the
Western states which in turn provided a degree of ongoing influence and control.
Regarding the equality of the states, the U.S. Supreme Court was consistent over
the nineteenth century, treating as axiomatic that a condition of equality was shared by all
of the states. At the same time, this equality encompassed only the political attributes of
the states. In the face of a number of challenges by individuals, private corporations, and
state governments, the court consistently upheld the constitutionality of the federal
government acting in the role of property owner on public land issues.
Conclusion
However one evaluates the reasonableness of both the Western states’ demand for
cession of the federal lands within their borders and the negative congressional response,
it is undeniable that, as a group, the public land states were treated differently from the
non-public land states, and in this sense were not treated equally. Federalism certainly
held different implications for the two classes of states. The validity of differential
federalism is confirmed by the fact that the federal government currently owns, on
average, 3.7 percent of the land in the nineteen non-public land states (all of it acquired
during the twentieth century), while among the twenty-six public land states that
achieved statehood before 1900 the comparable figure is 21.7 percent.
inconsistency in national land policy identified by differential federalism generated the
35
Joseph Story, Commentaries on the Constitution quoted in The Founders’ Constitution: 551
36
U.S. v. Gratoit (1841, 1846), Jourdan v. Barrett (1846), and Van Brocklin v. Tennessee (1885) are but
three examples from this group of U.S. Supreme Court cases.
37
Clawson: 153. In Nevada, the state where the Sagebrush Rebellion was most evident, 85% of the land is
owned by the federal government.
19
Convention