I propose a new word: historoidy, or as a variation, historoidical. Like factoids, which look and feel like facts, historoidy looks and feels like history but is, well, BS.
Of course if someone else has already coined the term, I apologize and thank you at the same time.
I have been thinking about historoidical fantasy for a couple of weeks now. I was in a discussion group recently, in which a fellow who professes a "conservative" and "originalist" view of our history, argued that the "militia" supporting Cliven Bundy in his standoff with the Bureau of Land Management (BLM) were on sound Constitutional and historical ground. Rather than suggest he is an idiot who listens to nutjobs like Glenn Beck and reads too many Cleon Skousen novels, I wrote back "You're wrong," and proceeded to explain why.
Apparently "You're wrong" is inflammatory, insensitive and -- curiously, to a group that claims to despise political correctness -- politically incorrect. So, next time I'll eschew such elitist devices as apostrophes and contractions and go with "Your wrong." Maybe that will sting less.)
But I digress.
My correspondent pinned his contention that Bundy's thugs were doing the founding fathers' work on two arguments. The first was that the BLM isn't mentioned in the Constitution and therefore violates the 10th Amendment, which says:
"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."
(Notice that it says "powers not delegated," not words not said. It also follows that if a power is delegated to the United States (by which it means the federal government, elected by the people directly and through the States) or is prohibited to the States then the 10th Amendment doesn't apply. We'll come back to that.)
The other argument my correspondent advanced was that the right of the States to own and control public lands is rooted in the Treaty of Paris, signed between the King George III's ministers and Commissioners appointed by the United States of America in September of 1783 and ending our war for independence.
The Treaty of Paris argument is historoidical.
But let's start with the 10th Amendment argument, and talk about the lost and lonely Article IV of the Constitution. 10th Amendment enthusiasts make much of the Amendment reserving to the States those things that aren't reserved to the federal government or prohibited to the States. Of course Articles I, II and III lay out the powers and responsibilities of the Legislature, Executive, and Judiciary, respectively. Where does the Constitution say what is delegated, or prohibited, to the States.
That would be Article IV -- listing the rights, responsibilities and limitations of the States -- which includes such jewels as:
"The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State. [emphasis added]" --Article IV, Section 3
So, in the case of public lands certainly, the Constitution explicitly reserves to Congress the right to dispose of and regulate the use of lands that don't belong to private owners or States. Obviously, should a new state put language in its Constitution that recognizes federal control over public lands within its borders (like, say Nevada), then that settles the question that much more.
Curiously, States' rights advocates who seem to live by the 10th Amendment, rarely mention Article IV, without which any further discussion of the 10th Amendment is basically meaningless.
It's as if it's, well, inconvenient.
Well what about the historoidical argument about the Treaty of Paris? I would normally snort with derision as it is utterly irrelevant. However, since it sounds and feels like there might be something there historically, it must be dealt with.
As I noted, the Treaty of Paris was the agreement between Great Britain and the United States of America that ended our war for independence. In the agreement, Great Britain gave up sovereignty over some of its former American colonies, listed as
"New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia..."
The treaty furthermore describes the the entirety of land transferred to the sovereignty of the United States, from which the new nation intended to carve future States. That area included what are now Minnesota, Wisconsin, Michigan, Illinois, Indiana, Ohio, Kentucky, Tennessee, Mississippi and Alabama.
The Treaty of Paris Argument runs thus:
1. The "United States of America " referred to in the Treaty is not the unitary government of later years but the collective States who had not conceded any autonomy to a central government and were thus negotiating independently with the Crown.
2. By enumerating the "free and independent states" with which the British Crown is negotiating, the parties to the treaty agreed that the States are independent of each other and free to do whatever they want; therefore invalidating later innovations in governance such as the Constitution. Indeed, with this interpretation, the Constitution usurps the States' power and any laws passed under the Constitution are only as valid as the States allow them to be.
Oh, where to begin...
The Treaty of Paris was signed five years before the Constitution was completed. That much is true. However, the American Commissioners were empowered by an American Congress that was organized under the Articles of Confederation (signed in 1777 and enacted in 1781). The Articles listed the powers and limitation of the States (as does the Constitution a few years later).
Article I lists the States that form the new nation, and lays out the process by which new states may be admitted. The process was fairly rigorous and required two-thirds of the States consent, with one exception, Canada. Article XI gave Canada a free pass to get in whenever they wanted. This puts another cast on why the British crown enumerated the States to which the Treaty of Paris applied; to make clear that it did not apply to Canada.
Article II states "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled" (echoed later in the 10th Amendment to the Constitution). Article VI clearly stipulates one of those powers not given the States; " No State, without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any King, Prince or State."
So, as far as the United States Commissioners were concerned, the Treaty was negotiated by a collective entity, empowered to speak for all under the Articles of Confederation, known as The United States of America. And, it really doesn't matter if the British ministers thought the were dealing with one government represented by five commissioners, or thirteen governments represented by five commissioners.
Five years after the Treaty was signed, the American Congress decided that the Articles of Confederation were flawed. Among other things, they didn't adequately address how the government would raise revenue in order to defend its against foreign powers or domestic insurrection. One of the problems had to do with the new lands to the west and how to carve new states out of them. The States were fighting over boundaries. Would-be new states like Franklin seceded from older States and were suppressed. And the question of who actually owned the lands in the new territories created new and dangerous tensions.
The States agreed to review the Articles and fix the flaws. In the Constitutional Convention that ensued, the State settled the issue of the new lands by surrendering claims to the territories. The federal government, holding the land in trust, sold it to citizens to raise revenue to pay off debts and perform its duties under the Constitution.
The current "Sovereignty" movement that cheers on guys like Cliven Bundy and his ruffians, portrays themselves as patriots and Constitutionalists. They have not read the Constitution -- certainly not Article IV -- and are not patriots. The best that can be said of them is that they are undereducated dupes. The worst that can be said is that they are traitors; according to the Constitution, mind you.
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