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History, text, and precedent reveal an understudied and underutilized source of constitutional authority for environmental protection—the Property Clause of Article IV, Section 3. The Clause vests Congress with the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” This work re-examines these words, the context in which they were written, and the limited judicial decisions interpreting them with an eye towards increased congressional reliance on the Property Clause in the face of daunting threats to our natural environment. Much prior scholarly explanation of the Property Clause focused on the Framers’ concerns about the land claims of various states, failing to consider any secondary motivations that deepen our understanding of arguably the Constitution’s most explicitly environmental provision. Eugene Gaetke and Peter Appel began the push back against the originalist argument for a narrow interpretation of Congress’s power under the Clause. This piece completes the picture, making an affirmative case for a fuller, conservationist original understanding, one that acknowledges the historic role of the federal government in preserving the nation’s environment and natural resources.
Anthony Moffa, Constitutional Authority, Common Resources, and the Climate, 2022 ULR 169 (2022). https://doi.org/10.26054/0d-tczp-p3mg