The man without a country

Cliven Bundy says Nevada is sovereign. Nevada's founders disagree.

This is the second page of the wire that was sent to President Lincoln on October 26, 1864, containing the entire text of the Nevada Constitution. The language of the constitution itself began on this page.

This is the second page of the wire that was sent to President Lincoln on October 26, 1864, containing the entire text of the Nevada Constitution. The language of the constitution itself began on this page.

PHOTO/ NATIONAL ARCHIVES

“I believe this is a sovereign state of Nevada,” Cliven Bundy told a radio interviewer on April 10. “I abide by all Nevada state laws. But I don't recognize the United States government as even existing.”

It was a remarkable statement. If it had been made during the administrations of John Adams or Woodrow Wilson, the speaker might well have been prosecuted and imprisoned. Members of the 1960s generation could remember when they were denounced as disloyal for statements on Vietnam that were far more mild.

Instead, an armed mob traveled to his ranch to protect Bundy—or rather, since he wasn’t threatened by anyone, to protect his steers. No one tried to jail him or, as in the Edward Everett Hale story, put him to sea to never again see or hear of the nation he had denounced. It was as clear a demonstration as we’re ever likely to see of Thomas Jefferson’s statement, “If there be any among us who wish to dissolve the Union or to change its republican form, let them stand undisturbed, as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.”

As much as he repudiated the United States, he seemed—with some ambivalence—to embrace Nevada. (The website of Glenn Beck, who interviewed Bundy, reads, “Cliven did say that while he believes that Nevada is a sovereign state within the United States, he does not identify with the sovereign states movement.” However, the accompanying partial transcript does not include such an exchange, and Beck’s producer has not responded to a request for the language.)

“I abide by all state laws,” Bundy told the Los Angeles Times in September. “But I abide by almost zero federal laws.”

“I’m still saying the state of Nevada owns that land, and the federal government has been an encroacher,” he told USA Today in 1996.

The notion that all this represents Nevada’s position is incorrect. We know this because we checked with folks who should know—Nevada’s founders.

Creating Nevada

Bundy, an organic cattle rancher and melon farmer, has used the public’s land to graze his steers without paying the grazing fees. An unbelievably dilatory Bureau of Land Management (BLM) has let this state of affairs drag on for an incredible two decades. When the dispute between Bundy and BLM finally came to a head in April, Bundy’s critics quickly found language in the Nevada Constitution, Article 1, Section 2, that undercut his position on state versus federal power:

“All political power is inherent in the people. Government is instituted for the protection, security and benefit of the people; and they have the right to alter or reform the same whenever the public good may require it. But the Paramount Allegiance of every citizen is due to the Federal Government in the exercise of all its constitutional powers as the same have been or may be defined by the Supreme Court of the United States, and no power exists in the people of this or any other State of the Federal Union to dissolve their connection therewith or perform any act tending to impair, subvert, or resist the Supreme Authority of the government of the United States. The Constitution of the United States confers full power on the Federal Government to maintain and perpetuate its existence, and whensoever any portion of the States, or people thereof attempt to secede from the Federal Union, or forcibly resist the execution of its laws, the Federal Government may, by warrant of the Constitution, employ armed force in compelling obedience to its authority.”

When this was quoted around the nation, some of Bundy’s followers on the fringe felt betrayed that a state with Nevada’s outlaw reputation would have such language in its organic law. “Unfortunately for the state of Nevada, its own state constitution is little more than a paean to the unfettered ferocity of the federal beast,” wrote one reader of the St. George News in Utah.

But the authors of the Nevada Constitution knew quite clearly what they were doing. It is possible to examine their reasoning. Reading their debates on what to include and exclude in the document, it seems eerily as though they anticipated Cliven Bundy, were familiar with his views, and set out to counter them.

The Nevada Constitution was written in a climate in which there were two powerful influences. One was the Civil War, which in part was very much about federal and state powers. While U.S. Sen. Jefferson Davis had, before the war, invoked federal power to combat the states, secession changed everything and the war President Davis fought was in part about allegiance to the federal government.

The second influence was contention between settlers of the Washoe country—as Nevada was then known—and the Utah Territorial government in Salt Lake City. From 1850 on, most of what is now Nevada had been a part of the Territory of Utah. Most of the population was in the eastern portion of the Territory and settlers in Washoe felt poorly served by a distant government dominated by the Church of Jesus Christ of Latter-day Saints. When Washoe finally received local government, elections tended to generate religious cleavage, and Mormon and anti-Mormon factions developed.

Over the years, grievances piled up. After friction developed between the Utah government and the U.S. government, and federal troops were sent to Utah, most of the Washoe Mormons returned to the east to support the Salt Lake government. Washoe settlers then seceded from Utah and petitioned Congress for “the support and protection of the Federal Government” and for separate status. The Washoe country was designated the Territory of Nevada in 1861. Statehood was authorized in 1863 and a state constitution had to be drafted. The proceedings of drafting the document were heavily influenced by the Confederate secessions and the Mormon rebellion against federal authority. A constitutional convention went into session on July 4, 1864.

Congress required that the convention include in the proposed state constitution “on behalf of the people of said territory, that they adopt the constitution of the United States” in the new constitution. The requirement was hardly necessary. The issue at the convention was never whether to pledge the state’s allegiance to the U.S. government, but rather how lengthy the language should be. Matters of style, not of substance, were at issue.

Every delegate but one was a Union Party member, the name given to the Republican Party during the war (to make it easier for Democrats to vote Republican).

The federal relationship

The debate on paramount allegiance to the federal government by states took place on the third day of the convention, and the language quoted above was the result. It is unchanged from the original draft proposed to the convention, but before it was accepted there was a considerable debate that illuminates some of the Bundy claims.

The discussions focused on what some delegates called “surplusage”—wordiness in expressing the state’s allegiance to the U.S. Constitution and federal government. (In those days, the two things were very much linked.) Some delegates believed it was enough to endorse the federal constitution and leave it at that, since that effectively acknowledged the supremacy of the national government over the states. But other delegates wanted it spelled out, and along the way, they debated many of the matters the Bundy standoff raised.

Throughout the days of the Bundy standoff, numerous commentators pointed out that the rule of law was at stake, that the U.S. has a “government of laws and not of men.” It was one of the things that split the nation’s conservative community as it debated Bundy. Nevada founders were not in doubt on the matter.

“When we say that paramount allegiance is due to the federal government, of course we mean, in its constitutional powers only,” said George Nourse, a Washoe County delegate at the constitutional convention. “Not to the men who happen to be at the head of the government, but to the government itself is our allegiance due, an allegiance paramount to that which is due to the state government.” (Emphasis is added.)

Nourse spelled it out in greater detail.

“No matter if the state does undertake to withdraw its allegiance, the allegiance of the citizen is still due to the United States,” he said. “That means that he is a citizen of the United States all the time—that he owes all allegiance and duty to the United States, and the United States in return owes protection to him, no matter what the state may do. And if the laws of the state come in conflict with the constitution and laws of the United States, then the question comes up under which sovereignty the citizen is to act. Then there must be a paramount allegiance, because it must be that one has a higher claim than the other, for if not, how is the conflict ever to be decided? When that question comes up, then we say the citizen must go where the United States leads.”

Douglas County’s Albert Hawley spoke of those “tainted with the heresy of State Rights.”

“[E]very man must know and admit, that he who refuses to subscribe to the doctrine that every citizen owes allegiance to the federal government in the exercise of its functions, as prescribed and defined by the Supreme Court of the United States, thereby stamps himself plainly and ineffaceably with the brand of—call it what you will—Copperheadism, State Rights-ism, or any other ism that can be found in the ranks of that party and among those men who have plunged this country into the war that is now desolating its fair fields and its once happy homes,” Hawley said.

Storey County delegate Thomas Fitch went further in his description of a remedy available to the federal government if a state challenged its authority: “And I have no hesitation in avowing my belief in the full and complete right and constitutional power of the government to put down any and all attempts to subvert its authority by armed force.”

Bundyites have a habit of finding reasons not to accept awkward facts with which they disagree. In this case, they argue that the paramount-allegiance clause in the Nevada Constitution was adopted by the Nevada Constitutional Convention delegates and then the voters under duress—that it was an illegitimate price for statehood.

That’s not correct. The proof is in the constitution that was adopted and the debates that produced it. Nevadans did not grudgingly adopt the language demanded by Congress and stop there. Rather, with greater enthusiasm than Congress, they pledged paramount allegiance to the federal government and then went on to adopt language that was not required, language that authorized the federal government, in the event of conflict, to come into the state with armed might and enforce federal law. This was not an action of coerced and reluctant men (convention delegates and state voters were all men then).

It was something that was not demanded of the state, as the delegates were aware. Delegate Frank Proctor, one of the founders of Carson City, said, “At all events, such a clause has never been inserted before in any other state constitution, so far as I can discover, and there is nothing in the constitution of the United States nor in the [statehood] Enabling Act requiring it.”

Courting disorder

Bundy’s contempt for courts, his willingness to argue his cases in the courts and then ignore their rulings, runs flatly counter to the views of the state’s founders.

“I do not allow that the private citizen has the right to be his own judge of the constitutionality of an act of Congress,” said Fitch, later Washoe County district attorney. “The only way in which he can oppose such an act is in the courts, and if it is decided to be constitutional by the courts, it is his duty to obey it till the decision is reversed or the law repealed. Although it is true that the decision may be reversed, still until it is so reversed it is his duty to obey it.”

Fitch felt the topic important enough to deal with it more than once: “I do not advocate the theory that the state judiciary, the legislature of the state, or the executive, or the people of the state, should be allowed to judge of the constitutionality of an act of Congress. If I were to say that, I should be advocating a wrong. I should be advocating, or at least giving my influence, to the theory of nullification, a theory which I condemn and reprobate.”

No other delegate disagreed with him. Nourse said, “I am not prepared, certainly, to say that every decision of the United States Supreme Court is to be accepted as indisputably right.” He specifically mentioned the court’s approval of the Fugitive Slave Law as one with which he disagreed. But disagreement did not allow disobedience: “Of course, any decision of that tribunal is the law, in the case in which it is given, and must be obeyed as the law in that case.”

Nevadan in name only

None of this is likely to influence Cliven Bundy. His history is one of letting the outcome of findings, whether agency or court, determine their legitimacy. The BLM considered his case more than once, and when it found against him, he refused to accept those findings. He argued his case in court, but when the outcome was adverse, he did not consider it legal.

Actually, in spite of his talk of state sovereignty, Bundy’s allegiance to the state government of Nevada is hardly unwavering, either. In a news release issued under his name by the Nevada Committee for Full Statehood, Bundy said the federally managed grazing areas around his ranch “belong to the people of Clark County.”

Nor is his fealty to county government particularly firm. When the county sheriff refused Bundy’s request to interfere with the federal roundup, Bundy denounced him. The validity of a level of government seems to depend on whether or not it does what Bundy wants.

But on the question of where Nevada’s founders stood on Bundy’s notion of a state sovereign over the federal government, it is plain that they did not make a state in order for it to be used as an obstacle to federal authority, as Bundy claims Nevada is.

Nourse said, “That we owe paramount allegiance to the federal government—that, whatever happens in our state, we are still subjects or citizens of the United States, and owe to the United States our service, rather than to our state, is all we say or need to say. … Now if there were no compact or agreement of this kind in the constitution of the United States, then the people in each of the sovereign states would, as the secessionists claim, owe paramount allegiance to that state. But the bargain is made.”

Hawley summed it up. “We insert in this section, if it be adopted, a declaration that the federal government has a right to compel the obedience of all its subordinate members, if any attempt is made to set aside any enactment of the federal government,” he said. “And that, sir, is a doctrine to which every loyal man ought to be willing to subscribe. It is a doctrine which every true man ought to be willing to see written in letters of fire upon the firmament, that he who runs may read.”

Nor would their disagreements with Bundy end there. It would also probably extend to behavior. Fitch spoke of “a duty to perform requiring calmness and deliberate consideration” and lamented “an over-zealous devotion to political abstractions.”