widely accepted that the United States government would own a national domain. As a
result, this matter received only the passing attention of the framers of the Constitution.
Even so it is essential to examine the language of the Constitution in order to ascertain
the framers’ perspective on the purpose of this national domain. (There is no record of
their actual debate on this issue.)
The Constitution does not directly state that the public domain would be owned
by the federal government. But Article IV makes clear that the United States would be a
property owner. Section 3, paragraph 2, known as the property clause, provides that “the
Congress shall have the power to dispose of and make all needful rules and regulations
respecting the territory or other property belonging to the United States.” Note that
federal ownership is couched in terms—“Congress shall have the power to dispose
of…”—that suggests a transitory responsibility. The quite different original wording of
the second half of this clause, submitted by James Madison, reinforces this interpretation:
“[Congress shall have the power] to dispose of the unappropriated lands of the United
Madison’s wording is consistent with that employed seven years earlier in a
Congressional resolution on public lands: “Resolved that the unappropriated lands that
may be ceded or relinquished to the United States,… shall be disposed of for the common
benefit…”
In both instances the federal government is characterized as an agent, turning land
over to others rather than holding it either for an extended period or in perpetuity. The
transitory nature of the federal responsibility becomes clear when these clauses are
contrasted with the language of another proposal James Madison submitted on August
18, 1787 regarding military installations. This proposal was ultimately not included in
14
Madison’s Notes of August 1, 1787 in 1787: Drafting the U.S. Constitution, 2 Vols., edited by Wilbourne
E. Benton (College Station, Texas, 1986): 1412.
15
Resolution of Congress on Public Lands, October 10, 1780 in Commager: 119-20.
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Convention