Cliven Bundy and the case for saying “No”
Cliven Bundy is a Nevada cattle rancher around whom has coalesced a small campaign of armed but not as of yet violent resistance to the federal Bureau of Land Management (BLM), the heavily armed property agent for the absentee landlord that is our federal government, a near-monopolist that claims ownership of some 87 percent of all the land in Nevada and practically all of the land suitable for grazing cattle. Take it as given that the law is against Mr. Bundy, who has been involved in 20-odd years of fruitless litigation against the federal government over his family’s 130-odd years of enjoying grazing rights on public lands, a concession originally offered in the 1870s as an inducement to settlers and interrupted in 1993 by concerns over the welfare of the Mojave population of the desert tortoise. When the tortoise was listed as “threatened,” the BLM insisted on renegotiating the terms of Mr. Bundy’s deal, and he objected. He objects to a great many things, including to the very idea that the federal government has the right to manage public lands within Nevada. While Mr. Bundy is full of eccentric legal rationalizations, characteristic of the western insurrectionists who preceded him for generations, this confrontation is at its heart an exercise not in litigation but in civil disobedience.
Civil disobedience is a complicated matter in a republic that (1) is dedicated to the proposition that we shall be ruled by laws and not by men and (2) was founded by violent revolution. The challenge of the American system — and hence of American conservatism — has always been balancing the principle of liberty with the pragmatic imperative of general obedience to civil authority, the elusive quest for Russell Kirk’s “ordered liberty.” The question of civil disobedience, of which the revolution of 1776 is an extreme example, is only another expression of that most basic American dynamic, the ongoing dialogue between Madison’s law and Washington’s muskets.
The ur-document of American civil disobedience is the Declaration of Independence, in which the Founders, out of “decent respect to the opinions of mankind,” laid out their revolutionary rationale, faulting King George for arbitrarily setting aside or refusing to enforce duly passed laws and usurping the power of the judiciary, using extraordinary rendition against suspected enemies and disposing of them without the benefit of a jury trial, attempting to subordinate the judiciary, creating new regulations and new regulators without legal warrant, interfering with trade, and much more that will be familiar to the modern reader. But the familiarity of King George’s multitude of sins is not the remarkable thing about the Declaration; what stands out is that the Americans already regarded themselves as a separate people — Englishmen, but a new nation of Englishmen apart from their British cousins who proved “deaf to the voice of justice and of consanguinity.” In that, they were really not so different from Mohandas K. Gandhi a century or so later — legally a British subject, but a member of a different nation, one with its own interests. Charged with sedition in 1922, Mr. Gandhi understood that whatever it was that was on his side, it was not the law. He pleaded guilty to the charges, offered no defense, and argued that the judge was morally bound either to resign his post or to impose the harshest possible sentence — if he truly believed the system of laws he was entrusted with administering to be just.
Mr. Gandhi was in the intellectual debt of Henry David Thoreau, whose Civil Disobedience is the second great American text on the issue. Thoreau’s ideas were even more disconnected from the particulars of the law than are Mr. Bundy’s, but he touched upon a question intimately linked to the drama playing out in Nevada. “This American government — ” Thoreau asked,
what is it but a tradition, though a recent one, endeavoring to transmit itself unimpaired to posterity, but each instant losing some of its integrity? . . . It is a sort of wooden gun to the people themselves. But it is not the less necessary for this; for the people must have some complicated machinery or other, and hear its din, to satisfy that idea of government which they have. . . . Yet this government never of itself furthered any enterprise, but by the alacrity with which it got out of its way. It does not keep the country free. It does not settle the West.
Who does settle the West?
Expanding the frontiers toward the Pacific was the great national project of the first period of American history. The Founders had this in mind, too, complaining in the Declaration of Independence that His Majesty had “endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.” It was a matter for policy and poetry both, from the Homestead Acts to Walt Whitman’s paean to “western youths / so impatient, full of action, full of manly pride and friendship . . . // We primeval forests felling / We the rivers stemming, vexing we, and piercing deep the mines within; / We the surface broad surveying, we the virgin soil upheaving / Pioneers! O pioneers!” Pushing back the frontier was no small thing — it was, in fact, a dangerous mission. Along with homesteading allotments, the federal government encouraged the settlement of the West by offering grazing rights on public lands. The BLM acknowledges that national policy was “designed to promote the settlement of the West” — for a time. Today, the BLM says, its brief is managing “livestock grazing in a manner aimed at achieving and maintaining public land health.” “Public land health” naturally means whatever the federal government needs it to mean.
We have been here before. Ronald Reagan declared himself a “sagebrush rebel” in solidarity with the western land-reform activists of his time (William Perry Pendley published a study of Reagan the environmentalist under that title last year), but the original sagebrush rebels were a different sort: not President Reagan’s think-tankers and gubernatorial candidates, but actual rebels, closer to the Bundy model, prone to the occasional blast of undisciplined gunfire. Having settled in the West in the middle of the 19th century, they were enraged by a series of acts passed during the Harrison-Cleveland years that cut them off from millions of acres of public land and resources. Men who had thought of themselves as pioneers suddenly became trespassers.
The western settlers found themselves at the mercy of eastern politicians who had never set foot upon the lands that they disposed of with so many pen strokes — not one member of President Cleveland’s forestry commission had ever visited the land they were managing — and being at the mercy of eastern politicians meant being at the mercy of eastern business interests. The put-upon inhabitants of the mountain states in many ways saw themselves as being in a position similar to that of the Founders: under the thumb of a consanguineous but effectively alien people, their own political interests and their own economic interests made subordinate to a haughty class of rulers who regarded them as contemptible rustics. Formal representation in Congress was cold comfort to westerners who were not only outside the eastern establishment but in direct financial competition with it.
The critical factor was this: Unlike the eastern states, the western states had in most cases been obliged to sign over the bulk of their public lands to the federal government as a condition of statehood — nobody had ever dreamt of imposing on Ohio such conditions as were imposed on Nevada and Colorado. (Texas, where 97 percent of the land is privately held, was practically alone in escaping that fate.) The western narrative, which informs the region’s politics to this day, holds that the states of the West allowed the federal government to take up management of their lands on the understanding that public lands and their resources would continue to be made available to the public, and that the federal government cynically changed the rules when the interests of its most powerful factions called for doing so. As one Coloradan declared in a letter to the eastern conservationists offering expert policy advice on land they had never seen: “You may have the power, but it is not right.”
Colorado eventually called for open defiance of the government in the form of a state convention that would consider the question of whether federal overseers were constitutionally entitled to act as a commercial landlord on public lands within the state. But Teddy Roosevelt was too big a bear to wrestle, and the insurgency collapsed.
There were some acts of violence associated with the original Sagebrush Rebellion, though, as with its successors in the 1970s and (as of this writing) in Nevada, there was more violent rhetoric than violence per se. The 19th-century protesters, their 20th-century echo, and their 21st-century revival in the Bundy dispute have a great deal in common. All were using public lands on the assumption that they were members of the public. Just as the 19th-century homesteaders became vagabonds and squatters overnight, Mr. Bundy was a rancher until the day he became a tortoise-harasser and a trespasser upon his own land.
Not “his own land,” some will protest, but “federal property.” And that goes to the heart of the matter: If the government is our instrument, and not the other way around, then Woody Guthrie’s law applies: This land is our land. The government may have the power to declare that the interests of the lonely Mojave band of desert tortoises supersede those of family ranchers, but that does not make it right. Of course land and the resources associated with it are scarce, and not every piece of public land can be made open to the public for whatever purpose. This is why public land is such a bad idea to begin with, and why governments should be obliged to reduce their geographic footprints to no more than what is required for military bases, office buildings, parks, and the like.
The question of civil disobedience could be made partially moot if the federal government simply followed the economically rational course of action here and deeded the land over to the state of Nevada or auctioned it off to such individuals as wish to acquire it. That doesn’t mean Yellowstone would be turned into a Walmart, but it does mean that having Uncle Sam act as an absentee landlord in a state in which it controls 87 percent of the land is desirable to nobody except BLM managers and those whose political bidding they do.
And there’s why it won’t happen.
But what, finally, to make of Mr. Bundy and his skirmish? There are many ways to contest the scope and arrogance of the ugly and stupid thing whose heart is in Washington. Charles and David Koch have invested fortunes in the cause of liberty, often at the expense of their own business interests. (This contra the rhetoric of Harry Reid, next to whom Nevada’s whorehouse operators look like Johnny Edwards, and I mean the Puritan preacher, not the Democratic vice-presidential candidate and sex-tape auteur.) The litigants in cases such as Heller (gun rights), McCutcheon and Citizens United (free speech), Hobby Lobby (religious liberty), the often pro bono lawyers advancing those suits, the state attorneys general challenging the illegal portions of the Affordable Care Act — all deserve our thanks and praise for the work they have done for our country, as do those people who go through the unpleasant (unpleasant if you are not a borderline psychopath) business of seeking and holding political office. And blessings be upon the think-tankers, the institution managers, the fundraisers, the rally organizers, and all of the people for whom the idea of citizenship means at the very least rousing themselves from this season’s Real Housewives for occasions other than Election Day.
But there are times when neither the law nor the electorate is on your side but still you are compelled to act. Whatever Mr. Bundy is about, it does not seem to be that he is too cheap to pay his grazing fees. Mr. Bundy is no doubt breaking the law, just as those lawless veterans were when they disregarded President Obama’s theatrical barricades during the government shutdown. No good society can afford to make Mr. Bundy’s example the general rule, but somewhere between his ranch in Nevada and the North Bridge in Concord is the place at which we say, “Enough.” The terror of that is in the fact that every Timothy McVeigh thinks himself a Paul Revere — but still there are Paul Reveres, and times for Paul Reveres. A little sedition from time to time is like fireworks on the Fourth of July: inspiring, illuminating, and — do not forget it — dangerous.