(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.
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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.