William & Mary Environmental Law and Policy Review


David Wilde


Though the path of the public lands debate is well-trodden, this Note will seek to answer the question in novel ways. First, it uses the Corpus of Founding Era American English to perform an objective linguistic analysis of the phrase “dispose of” in the Property Clause. Through this analysis, it appears that an ordinary person at the time the Constitution was adopted would most likely have read the phrase “dispose of” in the Property Clause to mean sell, give away, bestow, or put into another’s hand or power.

Next, this Note investigates the historical and philosophical understandings of state sovereignty in the Anglo-American legal tradition. Through this, this Note discovers that this issue was present in all British federalist systems, and thus British common law ought to be considered on the subject. Once examined, this Note finds that the record of British federalist systems strongly supports the argument that the Court’s established jurisprudence on this topic is misguided and should be revisited.

Finally, when this Note considers the consequences of federal control, it seems plausible that the dangers it poses to the states’ individual interest in public safety and our system of vertical separation of powers outweigh any federal government’s interest in keeping the lands to themselves.

This abstract has been taken from the author's introduction.