Wikipedia (Link, Link): A Cautionary Tale (2012)

by Jane Anne Morris

 

If you are an environmentalist, one sure way to become enraged is to read the World Book Encyclopedia‘s entries on Mining, or Nuclear Energy. They are so whimsical and unrelated to reality that you might wonder why so many consider World Book to be a reliable authority on anything. (Well, maybe aardvarks, but then I don’t know anything about aardvarks.)

This sort of justifiable frustration contributed to the welcome reception given in recent years to the likes of Wikipedia, a “people’s” compendium not burdened (supposedly) by the invisible establishment censors that evidently supervise the World Book universe. But Wikipedia, useful as it may be in some cases, does not eliminate the necessity of determining the biases of the source.

I’m not ready to review Wikipedia as a whole, but recently had a worrisome experience that started when I saw a Wikipedia entry on something I knew a lot about.

An entry on something I studied for nearly a decade, and made the subject of my 700+ page anthropology dissertation. The entry was patchy, so I clicked history. The article I linked to was utterly unfamiliar, as if I’d gotten off a bus in the wrong city, then tried to get my bearings.

My confusion and disbelief mounted and started elbowing each other. I didn’t expect to hear about the brothel scandal on their fiftieth anniversary, but I did expect to hear about the general manager’s resignation, the subsequent reorganization, and the decade-long fight with locals over stripmining that set it all up.

I didn’t expect them to quote the brochures that described their proposed fuel source as having an energy content comparable to dirt, but I did expect to hear about the $583 million bond referendum they lost by a 60-40 margin to an opposition that was outspent nine-to-one.

In the linked article, the history of the quasi-public utility I knew so well unfolded smoothly without bumping into any historical marker familiar to me from my own experience. It was like a history of the U.S. armed forces that told only of soldiers handing out candy bars, and air-lifting peasant children for cleft-palate surgery.

When I got to the end of the article and saw the author’s name, all became clear. Here’s the scoop.

The whole article was written by the utility’s long-time public relations officer.

A decade-long controversy involving stripmining, dozens of regulatory agencies and permits, numerous court cases, a failed bond referendum, a series of management scandals, and a very public re-organization—were not just skipped over lightly but ignored, obliterated in this paean to the agency’s selfless dedication to the public good, boat ramps, home weatherization, and parks.

From its origin in 1935 as a “river authority,” authorized to build a dam and sell a little hydroelectric power, it has grown to become an immensely powerful agency that controls both the water and electricity resources of a wide swathe of Texas. As a quasi-public utility created by the state legislature, it is exceedingly resistant to public input despite its diverse appointed governing board.

As references, the article cites only sources subsidized by the agency itself. Is this circular or what?

I won’t tell the story here. (You can read my dissertation, or articles by Bill Bishop (Bastrop County Times) and Davis McAuley (Bastrop Advertiser), who investigated and catalogued years of shenanigans by the utility). But consider: how many other agencies, companies, outfits, individuals, or others with very specific agendas have used this and other online platforms to essentially write their own imaginary histories by submitting public relations puff pieces to an uncritical public?

The Wikipedia link goes to the Texas State Historical Association’s Handbook of Texas Online, which you might think would hesitate to publish puff pieces in a reference book.

My dissertation on them is called Board and Staff: An Ethnography of the Lower Colorado River Authority (LCRA) of Texas (1987). It has been used in several graduate classes at the University of Texas. For library availability, see WorldCat.

Green Eats Green. Nettled? (2011)

by Jane Anne Morris

 

JAM’s Top Five Greens

The top 3-4 inches of fresh spring stinging nettles.It’s grid crash, or spring in the upper midwest. That winter diet of muskrat and tree bark goulash has not provided the vitamins and minerals you need to avoid slipping into a 33-degree lake. You can’t live on birdsong alone.

Greens, too often called weeds, start appearing in the spring, when you need them the most. Here are my Top Five.

1. NETTLES. Go for the nettles.

Off the charts in vitamins and minerals, and my personal favorite for taste. Yes, they will sting your skin, so wear gloves or plastic bags while picking the tender 2″ tops. The stingy stuff is formic acid (ants use it, too). Don’t worry, cooking banishes it (as does saliva). Nettles pack more protein than most plants, and are full of potassium, calcium, and magnesium.

Nettles are a rich addition to any soup, stew, pot of beans, or broth. Stir-fried/braised with garlic and chopped walnuts, and served with turmericked basmati rice, they’re hard to beat. You can eat them raw if you can get them to saliva without stinging your lips on the way in. (Work it out yourself.)

Nettles also make a nice tea (infusion) that you can drink, or rinse your hair with; they’re great companion plants in gardens, and good additions to compost piles.

2. PURSLANE

Archaeological evidence suggests purslane was a food staple as early as 17,000 years ago. Higher in omega-3 fatty acids than some fish, purslane is also a super source of Vitamin A, among many other vitamins and minerals.

Purslane is a succulent, with fleshy leaves and stems, and like nettle, can be eaten raw or cooked. I like it with sunflower seeds in a pot of black-eyed peas.

It loves disturbed areas, and since humans are so good at disturbing areas, it’s common almost everyplace Homo sapiens is found. Supposedly, purslane is one of the eight most commonly dispersed plants on earth. I’ve seen it looking really happy growing in gravel.

It’s every bit as impressive as nettle, but without the sting. It’s number two here because I just can’t get enough of them nettles.

3. LAMBSQUARTERS.

These were my favorite before I discovered nettles. Cooked, the leaves suggest extra-rich and earthy spinach. They rival nettles and purslane for their huge lode of nourishment, especially calcium, protein, and vitamins A and C.

Lambsquarters are good in salad if you don’t mind the “furry” coating on the leaves, which disappears if you cook them in any way: stir-fry, soup, whatever.

They like “waste” and disturbed land, and don’t seem to require the rich soil that nettles prefer. Like quinoa, they’re in the Amaranth Family, and Chenopodium genus. In fact, if you plant a quinoa seed, the resulting plant is virtually indistinguishable from lambsquarters.

4. WATERCRESS.

Unbelievably high in vitamins, minerals, antioxidants and other good stuff, reputed to do everything from cure cancer to grow hair and fade age spots, can be eaten raw or cooked, tastes good in everything from soup to salad; is this getting repetitive?

Often found in small streams trickling from springs, watercress is sometimes available even in the depths of winter if creeks are not frozen over. In case you didn’t pick up on it, watercress grows literally in the water, so bring double-plastic bags or something suitable to carry it in.

If cows have peed anywhere uphill of your watercressed creek, your cress may be bearing strains of E. coli you don’t even want to think about, but don’t panic. I’m sure you have developed a foolproof method for removing E. coli from corporate broccoli; just carefully apply this technique to your watercress and you will be fine. Eating it cooked (instead of raw in salads) will further reduce your chances of encountering an “Evil coli” (what did you think the “E” stood for?)

5. DANDELION.

Also off the charts in all kinds of vitamins and minerals, including vitamins A, B-complex, C, and D, and calcium, potassium, iron, manganese, magnesium, zinc, copper, choline, boron, and silicon. The leaves contain more beta-carotene than carrots.

Eat the leaves in salad, if you like a touch of bitterness; otherwise, use them as cooking greens. The bright flowers are excellent as a tempura vegetable.

The stemmed flowers can be fashioned into a grand necklace or thornless crown for celebrating spring days.

Ifs, Ands, and Buts…….

NOTHING IN THE PLANT BLURB ABOVE IS INTENDED TO CONSTITUTE MEDICAL, HEALTH, OR DIETARY ADVICE OF ANY KIND, or suggestions for diagnosis or treatment of any ailment. Do not so much as nibble a leaf without consulting your physician about possible drug interactions.

IDENTIFICATION. This is a life-and-death matter. Use a good plant identification book or books, and never miss a chance to talk to local foragers. If you are one of those people who think that everything with a darling little purple flower is the same species, NEVER forage for food unchaperoned.

PICKING AND CHEWING. Obviously you can get information from any herbal or foraging book on what part to use, what time of day to pick it, how to process it, and recipe ideas, if you need them.

CONTAMINATION. Try to use some common sense about where you forage. Railroad tracks, road rights-of-way, construction zones, and conventional farmers’ fields are among the most toxic places on our fair planet, due to both accidental spills and intentional spreading and spraying. Plants tend to lap up the crap with the rest. Remember, tumbleweed on the Hanford nuclear complex sucks up radioactive material, then dries up and tumbles eastwards with the prevailing winds, carrying the radionuclides along with it.

UNDOCUMENTED PLANTS. The likelihood is that none of my top five greens are native to north america—they’re all probably eurasian immigrants. Food for thought, if you are a native plant fanatic (and I am).

The Pink Oleo Saga: Why So Many Good State Laws Are “Unconstitutional” (and What We Should Do About It) (2008)

By Jane Anne Morris

What’s pink, French, and unconstitutional?

Hint: The story of this early “frankenfood” provides an advance script for the current global “free trade” frenzy. Over a century ago, its introduction was an occasion for greasing the skids toward establishing a U.S. “free trade” zone, one that is as devastating to local democracy as the WTO and NAFTA are to national sovereignty.

Why would the Supreme Court throw out state laws requiring oleomargarine to be colored pink? Why would state legislators pass such seemingly silly laws to begin with?

Why are provisions that protect citizens against fraud, safeguard their health, and protect local industry unconstitutional in the eyes of the Supreme Court? A recent example applies to corporate agriculture. A South Dakota constitutional amendment — passed by 59% in 1998 — prohibited most corporate ownership of land used for agriculture. In 2004, the U.S. Supreme Court effectively threw it out. Nebraska’s even stronger anti-corporate agriculture constitutional amendment, first passed in 1982, was ruled unconstitutional in 2006 by a lower federal court–citing the South Dakota case.1 Why do such measures garner the dreaded unconstitutional label?
Probably for the same reason that has stood for over a century: they interfere with the care and feeding of large corporations. They challenge the Supreme Court’s policy, evident since at least the 1870s, of nurturing and protecting corporations against the very states that created them. After corporate lawyers do the research and outline possible arguments, the Court has only to cut-and-paste a decision.

The myth that the Supreme Court began its turn toward “business interests” only since the early Nader years (as claimed by Jeffrey Rosen in “Supreme Court, Inc.” in the March 16, 2008 New York Times Magazine) ignores the long history that fills the pages of Gaveling Down the Rabble.

Commerce Clause to the Rescue

Even the Supreme Court needs to point to something in the Constitution that justifies its consistent pro-corporate decisions. The handy constitutional clause that has become a favorite is the domestic version of international “trade barrier” language: the commerce clause of the U.S. Constitution.

The Congress shall have power… to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. [Article I, section 8, clause 3]

The late-nineteenth century Pink Oleo saga provides a perfect example for a quickie workshop on how the Supreme Court uses “free trade” to get rid of good state laws.

After the mid-nineteenth century, more than one inventor around the world sought to turn slaughterhouse offal into something that people could be convinced to eat. If it had a long shelf life and was cheap to make, all the better. The successful solution came from Frenchman Hippolyte Mège-Mouriès, who obtained a U.S. patent for oleomargarine in 1873. Its commercial potential was quickly appreciated, as Mark Twain captured in a chapter of Life On the Mississippi written in 1883. The gleeful conversation takes place between two businessmen on a riverboat.

You can’t tell it from butter; by George, even an expert can’t!… We’re going to have that entire trade… You are going to see the day, pretty soon, when you can’t find an ounce of butter to bless yourself with… we can sell it so dirt-cheap that the whole country has got to take it… There’s more money in oleomargarine than–why, you can’t imagine the business we do. [emphasis in original]

Oleomargarine’s introduction into a nation long accustomed to the joys of udder butter churned up controversy. The “Oleo Wars” that ensued pitted state legislators against the growing power of meatpacking corporations. Corporate efforts to put oleomargarine in the nation’s pantries tell the archetypal story; at issue was whether state and local governments would determine their own laws, or have terms dictated to them by distant corporations.

The original oleomargarine was made not from vegetable oils (as it is today) but from slaughterhouse byproducts subjected to industrial processes in a factory. Mere inspection of a firkin of manufactured oleomargarine could not determine whether it had been made from inferior, doctored, or even dangerous ingredients. To add insult to possible injury, sometimes this easily adulterated industrial food product was fraudulently sold as real dairy butter. In addition, many feared that competition from oleomargarine would threaten the growing dairy industry. Health, consumer protection, and economic concerns were closely intertwined.

In response to citizen concerns, state legislatures started passing laws against oleomargarine. At the time, protectionist measures of this ilk were nothing out of the ordinary. In 1884, the New York state legislature prohibited the sale or manufacture of oleomargarine. In 1885, Pennsylvania followed suit. These and other overtly protectionist acts reflected the people’s will to use their imperfect representative democracies to keep out a product they feared would endanger them.

Manufacturers and purveyors of oleomargarine as a cheap butter substitute (and source of profits) were not pleased at this legislative attention. A variety of laws and a matching variety of corporate challenges evolved into a cat-and-mouse game between legislature and court ostensibly over artificial butter. Pennsylvania’s outright ban on oleomargarine was an early target.

On the same day that the 1885 Pennsylvania law was passed, a Harrisburg grocer (Powell) was arrested for selling oleomargarine. Lawyers representing corporations that manufactured and sold oleomargarine argued on his behalf that their product was clean, pure, and yummy, and that the right to make and sell it was covered by the Constitution. On the other side, defenders of the Pennsylvania ban argued that its intent to protect health and prevent fraud made it a legitimate exercise of a state’s “police power,” the legal term for the power to pass whatever laws are necessary and appropriate to protect its citizens.

State Courts Upheld Rights of Legislatures to Protect People

A Pennsylvania court found the ban to be well within legislative powers. In 1888, the U.S. Supreme Court also upheld it, strongly endorsing a state’s police power. The Court affirmed that protecting and preserving public health and morals was one of the main tasks of legislation, and that public policy should be determined not by courts but by legislatures. If some were dissatisfied with the legislative outcome, then appeal should be “to the legislature, or to the ballot-box, not to the judiciary.”2

But “Big Oleomargarine” tried again a few years later. In 1893, a Pennsylvania resident (Schollenberger) and registered agent for a Rhode Island oleomargarine-manufacturing corporation sold a tub of oleomargarine in Pennsylvania. After the Pennsylvania Supreme Court again upheld the state’s ban, the case was appealed to the U.S. Supreme Court. But meanwhile, states were also trying out a more colorful approach.

State legislatures that wanted to keep oleomargarine out of their states — and there were many of them — did not give up when their oleo bans were threatened by commerce clause arguments. Instead, they started to see pink as a way to regulate oleomargarine.

In 1890, the Vermont legislature prohibited the manufacture of oleomargarine in that state, and specified that it could be sold in Vermont only if colored pink. In 1891 Minnesota, West Virginia, and New Hampshire passed similar laws. Not long afterwards, an alert Minnesota oleomargarine S.W.A.T. team carried out a pantry raid and confiscated a quantity of not-pink oleomargarine that had been imported from Missouri by Armour Packing Co., a New Jersey corporation. A federal court upheld Minnesota’s pink law as an appropriate use of the state’s police power. Things were looking good for the “pink is beautiful” movement.

But it was not to last. Corporate lawyers challenged the “pink oleo” laws just as they had challenged the oleomargarine bans. Both the Minnesota Pink Law and the Pennsylvania Oleo Ban reached the U.S. Supreme Court in 1898.

Because only ten years earlier the U.S. Supreme Court had upheld an oleo ban as a legitimate use of a state’s police power, defenders of the Pennsylvania law reiterated tried-and-true arguments about protecting and preserving public health. Little did they know that a new argument would be offered and the Supreme Court would go for it. This time, “Big Oleo” trumped arguments about state police power and public health and welfare by playing the commerce card. The oleomargarine corporation lawyers argued that the Pennsylvania oleomargarine ban was what today the WTO tribunals would call an illegal trade barrier. The U.S. Supreme Court was persuaded, and, basing its decision on the U.S. Constitution’s commerce clause, the late nineteenth century analog of what today is touted as “free trade,” ruled the Pennsylvania law unconstitutional.

The Supreme Court’s reasoning had two steps. First, it determined that oleo was included in the “interstate commerce” category. Inclusion in this category had consequences, which were the second step. An item of interstate commerce might be regulated by a state, but could not be prohibited, said the Supreme Court. “Absolute prohibition of an unadulterated, healthy, and pure article” goes beyond the allowable use of the state police power. A state cannot prohibit the import from another state of a “lawful article of commerce,” because that amounts to regulating interstate commerce, which is a power of the U.S. Congress.3

The decision took a big bite out of a state’s police power. The ban that had been okay in 1888 was unconstitutional by 1898. Now, a state would have difficulty banning the import of anything that the Supreme Court could be persuaded was an article of commerce (and by the late twentieth century, this included toxic waste, air pollution, and nuclear waste, among many other things.)

Pink wouldn’t work either: again the high court sided with the corporations against the states. States’ pink oleo laws were unconstitutional because the pinkness requirement was as much a burden on commerce as a ban. The reasoning was that if a state lacked the power to prohibit the import of something (in this case, oleomargarine), then it also lacked the power to require that the imported item be adulterated in such a way that it would be unsalable. As for example, by requiring that oleomargarine be pink… or blue or red or black (other colors mentioned by the Supreme Court)… or impregnated with an “offensive smell.”4

In ruling against blue or stinky oleomargarine laws, the Supreme Court took another bite out of an already dwindling state police power. Legislatures, responding to a new situation (in this case, the appearance of a new product) acted to protect citizens against inferior products, fraud, and economic disruption. In this, they were supported by farmers and dairy corporations. So far, it sounds democratic enough, a routine use of the police power.

But then lawyers working on behalf of corporations hoping to profit from this new product challenged the states’ power to take such action.5 These challenges, being constitutional in nature, brought the matter before federal courts and ultimately to the Supreme Court. In evaluating the issue and explaining their decision, the justices had exactly the kinds of discussions that must have previously occurred in state legislatures, and prior to that, on street corners and in hayfields scattered throughout the states.

They discussed the invention, composition, and manufacture of oleomargarine; methods of determining its purity; testimony from an analytical chemist; the fact that it was used by armies and navies throughout Europe; and what size and type of container it might be packaged in. The justices then gave their opinion that oleomargarine was obviously safe and widely recognized as a food item, and that butter and oleomargarine were “substantially identical.” In short, they had the kind of discussion that we might want a legislature to have. But they are not legislators.

“Free Trade” Constitutionalized in Commerce Clause

Using the commerce clause, the “free trade” mantra of the time, they decided that states could not ban the manufacture, import, and sale of a substance that obviously many states wanted to ban. In other words, Supreme Court justices legislated their own opinions by declaring unconstitutional laws that they disagreed with. The Supreme Court acted as a legislature. If we step back from the Supreme Court’s musings on oleomargarine chemistry and pink dye as a burden on commerce, we can see the oleomargarine rulings for what they were: direct assaults on people’s power to govern themselves and shape their communities.

The language of commerce (or trade), shrouded in the gravitas of constitutionality, is a ruse to disguise a corporate elite’s efforts to escape government actions taken to protect the public welfare. It has long been understood that corporate interests use the judicial lever to undo legislative deeds. According to a legal historian, writing in 1943:

The old fights of state against nation were largely smoke screens to hide an attempt by some private interest to invoke the aid of the Court in combating public regulation. In large measure, this is the case today.6

The underlying issue is not whether butter is better, or whether pink margarine is repulsive, or even whether food policy (or economic policy) should be a local, state, or national matter. The issue is who should decide public policy: the people acting through a legislature, or a handful of judges.

Courts provided a more favorable forum than did legislatures for a “rematch” between corporations and states. Commerce clause rulings exempted corporations from the concrete exercise of state and local power, while delivering them into the kinder and gentler hands of the federal judiciary. In Gaveling Down the Rabble, I show how Supreme Court Justices since the 1870s used trade barrier language based on the Constitution’s commerce clause to promote the corporate agenda by invalidating state and local laws that threatened corporate power.

Like the “Oleo Wars,” other controversies decided under the commerce clause amounted to corporate challenges of state and local laws, with the role of arbiter falling to the U.S. Supreme Court. Analogous struggles were played out over other staples, and in other industries, with surprisingly few variations to this day.7

The transformation of the commerce clause into a wish-fulfillment machine for corporate lawyers was breathtaking. The harm to democracy done by the commerce clause “doctrine” is as damaging to democracy as the “separate but equal” doctrine was to human rights. Both deserve the same fate.

If African-American schoolchildren in unheated schoolrooms could understand “separate but equal” and in the face of horrible violence courageously demand its rejection, then today, those of us striving for justice and sustainability ought to be able to see the Supreme Court’s commerce clause doctrine for the anti-democratic pro-corporate scam that it is. I can only hope that we can begin to show the same courage in working to reject it.

***********

This article was adapted from Gaveling Down the Rabble: How “Free Trade” Is Stealing Our Democracy. You can also read it here. Jane Anne Morris generally cooks with olive oil.

First published in Spring 2008 By What Authority.

Notes

Try This At Home (2004)

by Jane Anne Morris

1: The Ambassador

Frame and outer shell, during construction, of a stringed instrument, perhaps a viola.The ambassador’s entourage — two edgy men with ear wires down their backs, and a few hangers-on — formed an irregular security perimeter. Handlers steered her around to avoid ambassadorial stumbles over uneven footing in the cramped space. It was Colómbian Independence Day, so I suppose I should have expected to bump into the U.S. ambassador in the mummy room of the National Museum in Bógota. Continue reading “Try This At Home (2004)”

Let Stockholders Make Call on Favre (2008)

By Jane Anne Morris

The Green Bay Packers control Brett Favre’s fate, but the people control the Green Bay Packers. The thousands of Wisconsinites who own stock in the team should hold a town meeting at Lambeau Field at the upcoming July 24 annual meeting of Green Bay Packers Inc., and make some decisions the old-fashioned way.

Every July, Wisconsin newspapers run photos of thousands of Green Bay Packers fans attending the annual stockholder’s meeting. Over 100,000 stockholders collectively “own” the team, the NFL’s only community-owned team. Current league rules prohibit community ownership.

The green and gold’s special structure, a public, nonprofit corporation, was “grandfathered” into the NFL in 1961. How else could a relatively small media market keep such a legendary team? The hullabaloo that accompanies having such a charismatic team in your town brings local benefits, and all team profits go to the American Legion.

In the “old days” of corporations, all stockholders held voting stock, and chose management to fulfill their aims, which were usually more than merely pecuniary. Sure, they wanted to make some money, but they also wanted other things: a train line to carry their crops to market at fair rates, the business that would be drawn to a crossroads with a railway stop, or a factory that would pay good wages and provide safe working conditions for their sons and daughters.

Today, in corporations — both for-profit and nonprofit — and even in government (gasp!), non-democratic structures and institutions have insinuated themselves like defensive screens between the stockholders (or the people) and the management (or the government). So loyal Green Bay stockholders are spectators not only at Packers games, but in the drama of picking a quarterback, and in making most decisions about the team as a whole.

We need reminding that for all their plump salaries, Brett, his teammates, the coaches, and their staff are all employees. They work for a community-owned nonprofit corporation. That community probably should not be calling in plays during a game, but determining the overall shape of the organization is part of its responsibility as owner. Which brings us back to the matter at hand.

Brett wants to play. Packers management, evidently tiring of his agonizing uncertainty about retirement, doesn’t want to reinstate him. Fearing that he might join the Chicago Bears or the Minnesota Vikings if given the chance, management doesn’t want to release him. A trade, the third option, would allow management to control where he goes.

A big decision looms, and it’s time for management to hear from the owners. It’s time for the community to take back the Pack. After vigorous debate, they should decide what to do about Favre (reinstate, release or trade), and then direct the management to carry out their wishes.

And then, after dispensing with the momentous decision about the quarterback, and exercising all of those community-grounded democratic muscles, we could try them out on some of the issues confronting us outside the stadium.

*************

Jane Anne Morris’s latest book is Gaveling Down the Rabble: How ‘Free Trade’ is Stealing Our Democracy (Apex Press, 2008). She lives in Madison and is a Packer backer.

Notes

“Let stockholders make call on Favre.” CT: The Cap Times (Madison, Wisconsin), July 23-29, 2008.

(Citizens United) Court’s Campaign Money Ruling Is a Red Herring (2010)

by Jane Anne Morris

Before running off trying to counter the recent Supreme Court decision in Citizens United v. Federal Election Commission (FEC), we ought to sort out what this decision does and does not do.

The Citizens United decision does make our democracy theme park a little worse, the way having an atomic bomb dropped on your own house would be slightly worse than having it dropped on your neighbor’s. But despite dire claims that the decision is the nail in the coffin of our democracy, that it will shake the current election system to its core, and so on, the case changes very little of our current situation.
Continue reading “(Citizens United) Court’s Campaign Money Ruling Is a Red Herring (2010)”

Strip Corporations of their Cloaking Devices (1996)

By Jane Anne Morris

 

Who spends the most time in federal courts complaining that their “due process” and “equal protection under the law” rights have been violated? Pushy women? Uppity Blacks? Gray Panthers? Illegal Mexicans? The Sandhill Crane Militia? HIV-positive Navy gunners? You really don’t know, do you?

None of the above.

Plaintiffs in such cases are most often large corporations.

That’s because before women gained the right to vote, long before Blacks could eat lunch at a drugstore counter, corporations were granted the rights of “natural persons” under the Fourteenth Amendment.

The Fourteenth Amendment (1868) to the U.S. Constitution reads in part,

[No state shall] deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Fourteenth Amendment was passed in 1868 to guarantee to Blacks, especially former slaves — the full protection of the U.S. Constitution and Bill of Rights.

Thanks to an 1886 Supreme Court decision (Santa Clara) since questioned but not yet struck down, corporations are now able to use the Fourteenth Amendment to fight against the government that created them and the people who try to control them.

Corporation lawyers wrapped the fictive corporations they represented in the mantle of personhood and then made their pilgrimage to the highest court in the land. There in 1886 the Supreme Court sanctified the corporate cloaking device that would enable them to elude and evade the will of the people who created them.

What does “personhood” do for corporations?

  1. It gives them grounds to question in court any government action.
  2. Along with other legal doctrines, it makes it easier for them to gain a forum in federal courts and thereby escape the state courts, which are usually more reflective of the will of the sovereign people.
  3. It expands the power of appointed-for-life federal judges to essentially make law.

Think of it this way: Before 1886, people tried to DEFINE corporations to serve the public interest. This is appropriate for entities that were created for just that purpose. But after 1886, corporations had the rights of constitutional persons, and so the government was reduced to trying futilely to REGULATE them instead.

One constitutional scholar described the effect of the Fourteenth Amendment in this way:

A constitutional doctrine contrived to protect the natural rights of men (sic) against corporate monopoly was little by little commuted into a formula for safeguarding the domain of business against the regulatory power of the state. (Walter H. Hamilton, 1938)

As countless court cases have affirmed, the purpose of corporations is to serve the public interest. Corporations are created by the sovereign people acting through state legislatures. As legal fictions existing to serve the people, they have no rights or even existence outside of the people’s will.

This is not the same thing as saying that corporations should have no rights of any kind. The people, acting through legislatures, may decide that corporations of a certain kind should have the right to sue and be sued; or, the right to be treated similarly to other corporations in the same class. The people may declare that corporations and their officers are subject to criminal prosecution. They may decide that small, local, independent businesses should have rights not extended to huge multinational chains.1

But such rights, if appropriate, should be granted singly and consciously, and not as part of a vague judge-made package deal that starts out by giving corporations the rights of “natural persons.”

No referendum was ever held on whether corporations should have the natural rights of human persons. No legislature ever passed a bill giving corporations such rights.2

We agree with Justice William O. Douglas, who stated in a famous 1948 Supreme Court dissent:

If they [the people] want corporations to be treated as humans are treated, if they want to grant corporations this large degree of emancipation from state regulation, they should say so. The Constitution provides a method by which they may do so. We should not do it for them through the guise of interpretation. (Wheeling Steel Corp. v. Glander, 337 U.S. 562)

At Democracy Unlimited we concur with Justice Douglas when he said, “I can only conclude that the Santa Clara case was wrong and should be overruled.”

Why wait around?

Democracy Unlimited is circulating a petition in support of a Wisconsin constitutional amendment that states that in Wisconsin, corporations are not persons with the constitutional rights of persons.

If such an amendment were passed, it would immediately be challenged and could even reach the U.S. Supreme Court. It will not be the first time that our fair state places itself at the forefront to insure that government of the people and by the people does not perish from this earth.

Let’s remove this obscene cloaking device that gives corporations more rights than you.

***********

“Strip Corporations of Their Cloaking Device” was first published in the Democracy Unlimited News Dispatch in Wisconsin, fall of 1996. It has also been reprinted in Defying Corporations, Defining Democracy.

Notes

Stone Soup, Democracy Salad, Just Desserts (1997)

By Jane Anne Morris
 

John Colepeper
What would JC do?
Centuries ago, Sir John Colepepper said of the “corporations” of his day,

Like the frogs of Egypt, they have gotten possession of our dwellings and we have scarcely a room free from them; they sip in our cup; they dip in our dish; [and] they sit by our fire.

Today, as corporations slobber in our cups, they also get into our minds, so much so that the very mention of “Participatory Democracy” sends people fleeing.

What gives “democracy” such a bad name? Everything about the way we practice it in the USA today. What we experience every day as “democracy” bores us to tears, leaves us frustrated, and gets us nowhere.

We know from experience that our “democracy” is a fake: we get to go through the motions of voting, testifying, writing letters, picketing, but most decisions have already been made before we even raise our voices. And if we do get a tiny concession, it will be temporary, just enough to pacify us until our government officials can go back to carrying water for their corporate masters.

One might argue: if our current “democracy theme park” is a boring, frustrating waste of time, then the Real Thing — Participatory Democracy — must be even worse.

Just think of it: day-long meetings, institutional coffee, plastic molded chairs in a stuffy conference room. Sounds like something we would want to really struggle for, eh?

Imagine the bumper sticker slogans: “Participatory Democracy: Almost as Good as Warmed-Over Spit!” Or, “Participatory Democracy: It’s Boring and Tedious But It’s Good For You!”

Not so fast. What we have here is a half-baked idea. Judging democracy by our current political process is like evaluating Mexican food by what you get at Tacko Bell.

“Theme Park Democracy” is boring, frustrating and tedious because it’s neither democratic nor participatory.

And this suits corporations just fine, because over the last century and a half they have moved in to occupy the places that people are supposed to have in the democratic process. (They sit by our fire.) Corporate “persons” now exercise many of the constitutional rights guaranteed to human persons. And this invasion of the “personhood” snatchers is a huge part of the reason why our current political system is undemocratic to the core.

But even when its very personhood is threatened, ours is an irrepressible species. There’s always someone who remembers how to make Stone Soup.

A woman goes to the middle of an impoverished village, where many are near-starving, and sets a huge pot of water to boil. She throws in a stone, and tells the hungry villagers that she’ll make them a hearty meal of stone soup, if only they’ll chip in. A few hesitant villagers toss in table scraps, bits of greens, an onion or a potato here and there. Soon the villagers are bringing in handfuls of grain, vegetables overlooked in their gardens, sprigs of herbs from their barren pantries, forgotten roots from corners of their cellars. And, you guessed it, the stone soup is a culinary success. And the making and eating of it is spontaneous community-wide democratic performance art.

Our version of Stone Soup is the pot luck dinner.

We invite a salad of people. Friends, family, visitors, and various hangers-on — all are welcome. The only “persons” left out are corporate “persons” — who would ever invite a corporation to a pot luck? (They dip in our dish).

We invite people, sovereign people. Hungry sovereign people.

We share and share alike. Everyone brings what they can. Artful chefs who sing to their vegetables bring the fruits of their art. But the exertions of the choppers, the graters, the knife-sharpeners, the pickers of fruit, the tossers of salads, the cleaner-uppers, are appreciated as well. There is room for everyone at this Inn.

We eat what we need. Individual actions are leavened by the gentle sifting of circumstance. People don’t load their plates with choice morsels before everyone has had a chance at them. The pot luck is egalitarian, with special consideration gladly given to the very young, the very old, and all others with particular needs.

And as we eat we breathe air permeated by the signs and sounds of friends, family and community. We are reminded that food is a gift of the earth, shaped by human hands, molded by longstanding cultural preferences. We are linked to sun and moon and stars by the rhythmic ripenings they dictate and reflect. Berries in their season, root vegetables in theirs. The time of the greens, of the wild rice, of the maize and the squash.

The meal is more than the sum of its parts, as is the community. The sharing of food, that link between the land and the stomach, between nature and culture, renews, reaffirms, and renegotiates social and economic relationships through participation. That’s why a famous religious figure had a Last Supper, not a Last Staff Meeting, and that is why it is remembered.

From each according to ability, time and skill. To each according to need. A redistributive celebration that balances differences without obliterating them, and absorbs and transforms want and plenty. There is no accumulation of wealth beyond stomach contents. Those who stay to clean up distribute any leftovers.

Whole cultures have run on the Pot Luck Principle, sustainably, for milenia, until certain invaders came and insisted that Society should submit to Economy, instead of the reverse. If we are to wrestle Economy back into its proper position as subordinate to Society, we’re going to have to remember the lessons of Stone Soup and its kin Pot Luck.

Now, what if you used a pot luck — this egalitarian, community-based gathering that fulfills a biological need in a social way, — what if you used this gathering as an opportunity to make social decisions about your community?

Hearing from everyone in-between mouthfuls (or platefuls, as the case may be.) Sharing ideas and opinions as they share beans and greens.

What if you used this gathering, this crossing of paths, this breaking of bread together — as an occasion to make economic decisions as well as social ones?

If you did that, we’d call it the monthly Madison Hours Pot Luck.

We’d call it a lot of fun.

We’d call it participatory democracy.

I’ll drink to that.

Speaking Truth To Power About Campaign Reform (1998)

By Jane Anne Morris

This article was written around the time Maine and a few other states were considering “campaign finance reform” laws. The historical perspective, even in the aftermath of the Citizens United case, shows us how little has changed. Many of these issues have been discussed by Maine labor activist Peter Kellman, author of Building Unions: Past, Present and Future.

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Democracy Theme Park – An Introduction

So you want to change the world? That’s great. So do I. In fact, I’ve been working on trying to change things, from stopping lignite strip mining in Texas to creating urban gardens in Madison, Wisconsin, for the past forty years.

Along the way, I’ve seen campaigns to change this or that swept into what I’ve come to call the Democracy Theme Park. There, we find ourselves going nowhere fast on rides that style themselves as processes for change, but which actually distract us from more direct ways of insuring that government and corporations serve the public. For instance, there is the Regulatory Agency Roller Coaster — a ride where, after years of testimony and hearings, we get a few hay bales added around the fence at the edge of the toxic waste dump. We think we’re getting things done, but in fact, it’s just busy work. We’re merely playing. We’re in bumper cars.
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