The Rise of Federal Title,
106 Calif. L. Rev. 631
Why did, and does, the federal government own most of the public domain within the United States? The standard historical answers—that states ceded their lands to the federal government and that the Property Clause confirmed this authority—turn out to be incomplete, masking a neglected process in the 1780s and ‘90s in which legitimate ownership came to derive primarily from the federal government.
This transformation, which I call the rise of federal title, involved two intertwined controversies. The first was a federalist struggle over whether the federal government could retain land in former territories admitted as states notwithstanding the promise of equal footing. The second concerned the nature of ownership: as states’ unregulated land grants created endless litigation, claimants turned to the federal government to resolve conflicting rights and to create a land system that offered certain title. Both processes vindicated federal ownership, with the consequence that the federal government enjoyed a monopoly on one of the nation’s most important sources of wealth.
This history proves highly relevant. The rise of federal title is under threat, as many western states, and the Republican Party platform, have spun a theory based on erroneous history that argues federal landholding is unconstitutional. Simultaneously, in constructing a principle of equal state sovereignty, the Supreme Court’s recent Shelby County decision relied on equal footing cases that ignored this early history. But the implications transcend immediate doctrinal concerns. For property scholars, this Article posits a greater role for the state and its regulation of property than current accounts emphasize. For those focused on public law, this history suggests a more expansive early federal government and a more modest court role in policing federalism—than most scholarship on the early United States acknowledges.