Can Pluto Help Us Understand “Free Trade”?

If we used Pluto’s new celebrity status as an opportunity to see Earth—from afar–as part of the solar system and part of a Galactic Trade Organization, would we gain any new insights?

Pluto is a trip-and-a-half. The word pluto means both wealth (plutocracy) and hell (Pluto as god of Hades), so, already economics, myth, and religion are implicated. The word attached itself not only to an erratic planet, but also a cartoon dog and a radioactive element that does not occur naturally. The dog was named after the sometime planet, now celebrity ex-planet, in hopes that the yellowish (like oxidized plutonium at room temperature) canine would bring profits to a growing entertainment empire. So, pop culture and capitalism are involved. In addition, the spacecraft sending back all those paparazzi-quality images from Pluto is powered by plutonium, the element not only named after the planet it carried the cameras to, but also all tied up with Iran and Karen Silkwood. So add in global politics, occupational health, toxic waste, and the environment.

Perhaps despite its ongoing coming-out party, Pluto is just another overrated dwarf planet. I mean minor planet. Oops, maybe former planet. Ex-planet? The class of ex-planets is small, but even smaller is the set of celestial bodies that has been called dwarf, minor, former, and ex. Now we can add that it is craterless, has unexplained trenches, boasts gigantic ice mountains, and is “geologically active,” to boot. It’s gotten our attention.

All eyes are on Pluto. Let’s truly put our eyes on Pluto, and look back towards the third rock from the sun for a galactic take on our home world. Think future, politics, and investment.

How would Earthling “free traders” respond if Galactic Trade Organization ministers determined that a tiny planet called Earth was the best source of raw oxygen and a perfect location for the galaxy’s toxic waste?

“Free trade” proponents would then for once find themselves on the receiving end of what they have been dishing out for centuries. They could look forward to being told that their claims to “need” the oxygen were based on “junk science.” And that should they want any oxygen down the line, they would be free to pay the going rate to import it. They would be assured that hazardous waste infill would improve Pacific Basin ecology, and that previously “underdeveloped” economies would get a shot in the arm as sno-cone stands, video game arcades, and other new “development” sprung up around the toxic waste import facilities ringing the Pacific Ocean. Any Earth laws that slowed the oxygen harvest or impeded incoming galactic garbage would be labeled “trade barriers,” and the Galactic Trade Organization would toss them out.

Change Galactic Trade Organization to World Trade Organization and you have described the global situation today. Change World Trade Organization to U.S. Supreme Court, and you have described the situation within the U.S.There’s not a square inch of United States territory that is outside the domestic “free trade” zone.

The excerpt above is taken from page three of my book Gaveling Down the Rabble. There and elsewhere I have explained why I insist on putting “free trade” in quotation marks. (Short version: because it’s about neither trade nor freedom, but a denial of basic democratic rights.)

If the long view (about four billion miles) from Pluto is what it takes to get people to understand the US domestic “free trade” zone, then so be it.

Why a Green Future is “Unconstitutional” and What to Do About It (2008)

By Jane Anne Morris

A top view of a drawer of various wrenches and pliers; entrancing and calming. Tools.Working in tandem with a cooperative Supreme Court, corporate lawyers have insinuated themselves into the US Constitution like retroviruses, rewriting Constitutional code so that instead of protecting human persons from an oppressive government, the Constitution has been twisted to shield corporate persons (corporations) from control by the governments that create them.1
Continue reading “Why a Green Future is “Unconstitutional” and What to Do About It (2008)”

Look to Congress for Supreme Court Fix (2010)

by Jane Anne Morris

AllowedInLandOval copyHow is it unconstitutional for a state to require place-of-origin labels on meat? Regulate sale of its water? Establish worker protections stricter than federal standards? Where does the US Constitution say that states cannot require that toxic waste be sorted and labeled? Cannot include labor standards in state purchasing policy? Cannot make companies disclose what chemicals they use in products and facilities?1
The Constitution is silent on these matters, but the Supreme Court has interpreted the Constitution all the way to next Tuesday in order to declare these measures unconstitutional. Supreme Court interpretation devised concepts like free speech rights for corporations, and that workhorse, money equals speech, to hobble election reform. Judicial interpretation enables corporations to use the Civil Rights Act to claim damages for being “discriminated” against. Supreme Court interpretation dished out rights, powers, and protections for corporations while repeatedly denying same to minorities, women, and workers.
Constitutional scholars routinely describe the Court as the most powerful court in the history of the world.2 In addition to its untrammeled interpretive latitude, that singular institution wields a bundle of powers. It decides cases, rules on the constitutionality of acts of the executive branch, determines the distribution of powers between state and federal government, and judges the constitutionality of any law passed at any level of government. It can “call up” any court’s ruling if it disagrees. Justices scan the nation’s laws, and using easily rigged “test” cases, void any law not to their liking.
This power does not come from the Constitution, which, apart from a few matters (like ambassadors and Indian tribes), specifies very little about the Supreme Court.3 The vast powers and maxed-out discretion exercised by the Court come from the US Congress. A series of Judiciary Acts (1790, 1875, 1925, and 1988) sketch (and stretch) the dimensions of its power.
So if you are concerned that corporations have most of the constitutional rights of human persons, or that numerous “green” state and local laws are thrown out as unconstitutional, then the true object of your discontent is neither the Constitution, nor the Supreme Court, but Congress.
Congress could borrow from other countries’ systems that not only tolerate less poetic license in judicial interpretation, but spread around what the current Supreme Court concentrates into one big-box power center. Special constitutional courts rule on the constitutionality of laws. A separate court decides cases between parties. Yet another court handles human rights violations, and by “human,” they mean, uh, human, and not corporate persons. Sometimes, legislative bodies can overrule court decisions.
Within the US, state legislatures and members of Congress have offered correctives to the existing “Godzilla” Supreme Court. Such as, requiring a supermajority or unanimity of Supreme Court Justices to declare a law unconstitutional; allowing Congress (or another legislative body) to overrule a decision on constitutionality; and removing the Congress-granted power of the Court to second-guess state courts on constitutional questions. A national referendum has also been suggested.
Congress need not retain two centuries of Congressional Acts uploading legislative powers into the judicial bailiwick. Perhaps Congress likes it this way, confident that any serious and effective reforms will be declared unconstitutional by the “branch” next door.
The ball is in our court, the people’s court: the US Congress.

Corporate anthropologist Jane Anne Morris’s Gaveling Down the Rabble is cited in an amicus brief filed in Citizens United v. FEC (the “Hillary film” corporate speech case). Morris is currently writing a book about the Supreme Court.

This article first appeared in Justice Rising (Alliance for Democracy), ed. Jim Tarbell. Spring 2010, Vol. 4, #4.

Corporate “Social Responsibility”: Kick the Habit (2000)

by Jane Anne Morris

What to expect next from corporate sponsors of the WTO? There’s a well-thumbed page in the corporate playbook, ready to go. Whether or not it works depends on us.

The last time there was a scuffle as worrisome as the Seattle demonstrations,” Richard Milhous “Tricky Dick” Nixon was in the White House. Nearly everybody else was in the streets.

We were millions, and we demanded freedom, justice, equality, peace, clean air and water, and the right to choose our own hairstyles. We knew the joy of thinking it was all possible.

We also knew the raw fear wrought by the pop of tear gas canisters, the glint of sun on gunmetal, and the meltdown of a peaceable crowd being attacked by the forces of law and order.

But it is only at a distance of a quarter century that I begin to recognize the depths of another fear, just as visceral. As I pore over the writings by and about the corporate elite of that day, a simple fact stares out at me: they were scared witless.

While we wove our hopes into songs, and scrawled our demands onto placards, they spelled out their fears in journal articles and speeches at chambers of commerce.

The corporation was “under attack as never before,”1 subject to a “tidal wave” of “dissident groups, structured into onslaught vehicles of unrelenting social action,”2 according to corporate literature. The future looked “grim.”3 Corporations were about to “lose their autonomy, power and influence.”4 Some managers doubted that large corporations would even be “permitted”5 in the future. The significance of profit margins shrank as the CEO of one of the U.S.’s largest corporations wondered whether “the corporation as we know it…will survive into the next century.”6

For those whose greed commanded the rudder of the ship of state, the sight of people in the streets — and not for shopping, mind you — was terrifying.

What a difference a generation makes. Corporate managers have more than survived the tumult of the Nixon era. Today, a tiny fraction of the human population, in its role as corporate managers, has been exceedingly successful in using the legal fiction of the corporation to expand its autonomy, power and influence. How did they accomplish this?

While we huddled in coffeehouses and church basements debating strategy, corporate managers plotted in board rooms. Their diagnosis unfolded into a plan. From their perspective, a Great Danger threatened: Government action spurred by public demands. A tried-and-true strategy beckoned: Make a show of voluntarily Doing Something and publicize it shamelessly.

Presented to the public, this was a plan with a thousand faces: corporate social responsibility, the corporation as a good citizen, voluntary codes of conduct, corporate executives as “trustees” for the public interest, corporations as “good neighbors,” the civic duty of the corporation, and so on.

There were three pillars to the corporate plan. First placate, then co-opt, then re-frame issues so that in the future, people would “demand” something that corporate managers want to “give.”

Corporate donations and other forms of mostly lip-service “corporate social responsibility” pacified portions of the community by softening the edges of some of the most egregious or the most visible corporate harms. In a quasi-behaviorist twist, they rewarded “good” behavior and disadvantaged “bad” behavior on the part of showcased community and charitable organizations. But most of all they enabled corporate managers to reshape public “questions” so that the “answers” were to come not from a self-governing people but from “corporate good citizens.”

Corporate executives were advised that they “should…be able to gauge with some accuracy the degree of social responsiveness that will satisfy the community….”7 “If corporations fail to exert considerably more social initiative, they will be compelled to do so…”8 “The less voluntary social action U.S.companies take, the more it will be imposed by big government.”9 There were fears that public pressure would “compel legislative response.”10 (Heaven forbid that this should ever occur in a democracy.)

Targets of “corporate social responsibility” were selected for maximum effect. Corporate managers who lent financial support were well aware that they were “ingratiating themselves with recipients, or pacifying a pressuring public. A corporate gift can be a bribe, paid in return for a gadfly group’s promise to keep still and refrain from criticism of corporate policies.”11 On the other hand, “…some business givers have…withheld grants from groups identified with causes they consider to be too militant, or unfriendly to corporate interests.”12

For some, the success of another round of “corporate social responsibility” was a foregone conclusion. “The social responsibility payoff has been attested to time and again. The most patent cost justification is a simple matter of good stickmanship — sidestepping the penalties of social irresponsibility.”13 The judicious distribution of corporate money “has allowed the managers to become brokers of social power, deciding which programs are supported and which are not.”14

The language is vivid. “Bribe.” “Ingratiate.” “Satisfy the community.” “Payoff.” “Brokers of Social Power.” How much plainer can it get? In all cases, control was the goal; control not just of groups or movements, but of ideas and debates.

Coupled with brutal suppression, this three-step strategy — placate, co-opt, re-frame debate — was used early and often. It worked after the sixties-seventies wave of public uproar; before that it worked in the 1950s ; it worked during the Depression; it worked during the wave of “unrest” immediately after World War I. In the late 19th century, an early version of it worked after corporate strategists got a glimpse of the Knights of Labor and the Populists.

The notions of corporate trusteeship, the civic duty of a corporation, corporate citizenship, corporate social responsibility and the corporate social audit — all originated in the desire of corporate managers to thwart unionization, forestall revolt, avoid government action, and above all retain control by shaping public debate.

Each time corporate managers hiding behind the increasingly powerful shield of the legal fiction of The Corporation took another step toward becoming a more powerful “semi-autonomous managerial elite,” they cranked up the public relations machinery to boast of The Corporation’s deep concern and caring for the community. Increasingly, they doled out goodies — always on their terms, and in their terms.

So successfully have these terms become part of our political language that they often go unnoticed. Why is it, for instance, that when a government (using money collected for the public good) aids needy citizens, they’re on the dole, a supposed disgrace, but when corporate managers give away other people’s money to a soup kitchen, it’s philanthropy ? (La-dee-dah.)

If you doubt that corporate managers and not regular folks define the terms of public debate today, you might ask yourself these questions. Who defines free trade? What about welfare reform? Or those dubious twins, tree harvest and deer harvest ? Remember jobs-versus-environment , a golden oldie that never seems to fade away? These terms, and the terms of the debate, were all brought to us by corporate managers.

Corporate managers are willing and eager to participate in the democratic process, but only on the control end. When it comes to being subject to it, they balk, and are in fact willing to do anything, anything — even give away a little precious corporate money — in order to avoid losing control over the way issues are framed and thus becoming subject to the democratic process.

Corporate managers of the seventies warned their comrades that failure to act would have horrific consequences.

“The alternatives are not attractive. The likeliest possibility is the wholesale substitution of public for private goals, strategies, and actions…”15

The options were clear: Either institute the three-point plan, or the country will succumb to… (I hope you’re sitting down)… a people’s democracy.

As night follows day, corporate managers experienced great surges of “corporate social responsibility” following each historic episode of social unrest. Such bouts of “corporate good citizenship” are voluntary, calculated, expedient, cheap and temporary. Far from reflecting democratic control, they frustrate it. Meaningless, unenforceable “side agreements” are not concessions to democracy on the part of corporate managers, but concessions to lack of democracy on the part of a not-sovereign people.

So it must be an especially sweet moment for corporate managers looking up from their Courvoisier-glazed snifters — to hear people clamoring for “corporate social responsibility,” that strategy-with-a-thousand-faces that has served to solidify the grip of the corporate elite through a century of citizen protests.

With the echoes of “WTO Week in Seattle” still rumbling in our ears, we have another opportunity to firmly reject the “corporate social responsibility” ruse. A small but growing core of people is demanding not goodies or favors or good deeds but real self-governance. They know that receiving goodies from worried corporate managers is the real “dole,” while a self-governing people controlling their community’s resources in the interest of society as a whole — is democracy. La-dee-dah.

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

Originally published in By What Authority, Vol. 2, No. 2 (Spring 2000); reprinted in Defying Corporations, Defining Democracy

Notes

Meat, ‘Free Trade’ and Democracy: As Goes South Korea, So Went Missouri (2008)

By Jane Anne Morris

In the Spring of 2008, tens of thousands of South Koreans held candlelight vigils every day for over a month to protest being forced to accept beef from the United States. The US government claims that barring our beef is an illegal “trade barrier.”

This isn’t the first time the US has resorted to international bullying to force people to take our meat. In 1996, the European Union (EU) banned imports of US artificial hormone-fed beef for public health reasons. A challenge from the US convinced the World Trade Organization (WTO) to brand the EU policy a “free trade” violation.

You’ve got to wonder what those South Koreans think might be wrong with US beef. (I’ll give it away—it is a justified fear that the US does not take sufficient precautions against “mad cow disease”—think “downers.”) But my concern here is not the meat but the mechanism.

You might also ruminate on why forcing a country (or community) to import things it clearly doesn’t want to import is called “free trade.” The shortest definition of “free trade” is “forced trade”: communities (or countries) are forced to import stuff they think is dangerous or otherwise objectionable, and export stuff (such as water and other resources) that they want to keep at home. Such matters far transcend the notion of mere “trade.” What’s at stake is no less than self-governance and democracy.

The scraps of self-governance that South Koreans are struggling to retain have already been stripped from, say, Missouri. Those protesters in Seoul (and others around the world under draconian “free trade” regimens) are going through something that has been happening in the US for well over a century.

Passing laws to protect citizens from the possible dangers of incoming meat has long been a concern of governments. And for decades, states in the US did just that. But starting in the 1870s, the Supreme Court, acting in the interests and at the behest of corporate meat purveyors, used the Constitution’s “commerce clause” to rationalize a domestic “free trade” zone in the US.

That meant that protective state laws like these had to go.

Missouri. Fearing the spread of “Spanish fever” in cattle, in 1872 the Missouri legislature passed a law severely restricting import of Texas cattle into the state. The Supreme Court declared the law a “trade barrier”—unconstitutional on commerce clause grounds.

Minnesota. In 1889 Minnesota passed a law that required that meat sold as human food come from animals inspected in Minnesota before slaughter. It was declared unconstitutional under the commerce clause.

Virginia. In 1890 Virginia passed a law requiring inspection of meat that came from animals slaughtered more than 100 miles from where the meat was sold. It was found unconstitutional on commerce clause grounds.

State laws—and not just ones about meat—adapted for local conditions, concerns, and preferences, were routinely rejected as “trade barriers.” Eventually Congress established federal regulatory authorities (often sloppier on standards and enforcement) that helped a few large corporations dominate the national market. As the power of federal regulatory agencies waxed, the influence of both states and small businesses waned.

Much state and local power has been stripped, but states still attempt to do better than the lax and selectively enforced federal standards. But if they step out of line, the US’s own trade tribunal (our “free trade” enforcer)—the Supreme Court—steps in. In 1967, for instance, an Oregon law requiring country-of-origin labels on meat was declared unconstitutional by the Supreme Court because it purportedly interfered with interstate commerce.

Current global corporatization efforts use the Supreme Court’s tried-and-true techniques ratcheted up one level of generality. The issues and reasoning are so similar, that you could take old Supreme Court cases, scratch out phrases like “Spanish fever” and substitute “mad cow disease,” and use them for WTO decisions.

But since we know the arguments well, and understand that the issue is democracy and no mere matter of trade or commerce, we might as well simultaneously challenge both the domestic and the international versions of Forced Trade.

***********

This article was first published in The Progressive Populist in 2008.

“Free Trade’s” Footprint a Decade after Seattle (2010)

By Jane Anne Morris

 

A stout, anthropomorphic crane thingie on a ship seems to be loading or unloading giant stuff.On this Tenth Anniversary of the “Battle for Seattle,” we could celebrate, we should commemorate, but we must evaluate. Right, then. What seemed so important at the time? It is difficult to even see back to 1999 without becoming lost among other landmark events soon to bask in their own tenth anniversaries. The last decade’s memory palace hosts the Y2K kerfuffle, a muffed Bush election, the burst of the Dot-Com bubble, Nine-Eleven, war, another muffed Bush election, war, the Obama election, war, a worldwide economic meltdown, war, and a “jobless recovery” fueled by a “New Deal”-style rescue plan for banks, investors, hedge fund managers, and insurance and automobile corporation executives. Oh, and more war. Even for those who were embattled in Seattle, who trotted with the Teamsters or tacked with the Turtles, or watched it on television, or read the book, saw the movie, or got the T-shirt, that’s a lot of water over the dam. Yet, the Battle for Seattle was iconic.

What happened in Seattle?

At the World Trade Organization’s 1999 Ministerial meeting in Seattle, the incumbent A and B Team elites-from the US and the European Union-though not themselves seeing eye-to-eye, assumed that as usual they would be calling the shots on world trade. Ministers from the rest of the world (expected to play the supporting cast of lesser elites) begged to differ, and declined the privilege of carrying water yet again for the usual overlords.

Meanwhile, outside on the streets, and representing the 99.99% of humanity who do not make the world’s trade rules, thousands of protesters besieged trade envoys already embarrassed by their own disarray. The opening ceremony for the WTO Ministerial was canceled. The mayor of Seattle declared a state of emergency and imposed a curfew. The National Guard and Washington State Patrol were called in to “maintain order” (i.e., protect property and intimidate demonstrators). The meetings collapsed, trade ministers slunk away. Cleanup, recriminations, firings, finger-pointing, bragging, spinmeistering, and trials went on for years. For all the crowing, one might have thought that “free trade” had bit the dust.

“Thousands of people teaching the masters of the universe that they could no longer conduct business as usual.”1 That’s how a flagship of the left described the outcome of the days-long fracas around the WTO meetings. What grade would we give those “masters” after a decade has passed? Did they “get” it? Did we “get” it? Just what did we get?

The view from 2009

Seattle’s events helped elevate “free trade” to marquee status among activists, giving it a reputation transcending individual manifestations in disputes about tires, shrimp, Mexican trucks, wheat flour, automobile parts, hormones, garlic, batteries, or olive oil.

In 1999, around the Seattle Ministerial events, a broad swath of activists began to realize what trade envoys have long understood: the point of all “free trade” is to flat-out prevent communities of any size (villages, cities, provinces, states, countries) from protecting themselves.

Against unlabeled meat or other foodstuffs.

Against corporations coming in and selling off their natural resources or water.

Against imports of cheap, subsidized goods from abroad that will devastate local industry.

Under “free trade,” a government cannot ban imports manufactured under unfair labor practices (child or prison labor, union-busting, and so on), or medical tubing made from “mystery” ingredients. It cannot prohibit the taking and export of plants, animals, or even the very water and soil.

“Free trade” turns a government into a powerless citizen advisory board in a democracy theme park. Unelected trade envoys and tribunals then freely void any laws that cut into their profits. Without the “Battle for Seattle,” many people still might not realize that “free trade” is about much more than a steel tariff or tortilla tax.

Forced trade’s footprint

“Free trade” means forced trade. A community concerned about its present and future well-being may not put its values into policy, but is forced to do business on terms set by outsiders. From the town hall perspective, a “free trade” regime shrinks the realm of governance and expands coercion from without.

A “free trade” zone is a democracy-free zone. Democracy and “free trade” cannot co-exist, because “free trade” denies the most basic democratic principles.

That said, where does that leave us today? Is forced trade’s footprint in the US any different from what it was a decade ago?

  • Can a local government prevent a corporation from coming in and buying up and selling off local water? How about other resources, such as natural gas?
  • Can a government facility refuse to accept hazardous waste unless it meets certain treatment standards?
  • Can locals refuse to accept garbage imports from faraway non-recyclers?
  • Can locals at least require that imported goods be labeled with such earth-shaking information as county of origin and ingredients?
  • What about other consumer protection laws (food product inspection, liability, etc.), labor laws (from wages and hours to occupational safety) and public safety laws (transportation, vehicle standards, other hazards?)2

Effective laws of this nature are not allowed in the US, and it’s not because of WTO or NAFTA rules. International trade organizations do not spend much effort ruling on most US laws, because the work has already been done. The US Supreme Court and its lower federal court helpers have been throwing protective laws out as “trade barriers” since Ulysses S. Grant was president. The Constitution’s commerce clause was re-envisioned at about that time as the “peg” on which to hang these pronouncements.

So where today international tribunals use the term “trade barrier” to justify voiding laws, US federal courts need say only “commerce clause” to accomplish the same thing. In both cases, unelected tribunals take the place of legislatures, and procedures that are blatantly anti-democratic are glossed as being mere matters of trade/commerce.

The invisible tarp

And so, the story in 2009 is not the great strides democracy has made against forced trade in the decade since Seattle. Nor is it the great strides forced trade has made against democracy in that time.

The story, even in this day of corporate bailouts and military escalation, is still what it was in 1999. Both internationally and domestically, forced trade is firmly ensconced, not only in law but in lore.

In the US, most efforts by local communities or states to protect themselves have been unconstitutional for a century. Until 1870, the Supreme Court had not voided a single local, state, or national law as a trade barrier, an interference with interstate commerce. But then, even as hopes for Reconstruction were crushed, the federal judiciary and newly emerging corporate counsel locked hands to invalidate almost any effort by government to reign in corporate expansion.3

Over the next 60 years alone, 237 state laws were thrown out. Each toss sent a chilling message to other states considering similar laws. Between 1910 and 1930, the rate was greater than one law per week. Valiant state efforts to protect resources, economies, public health, and worker safety, were swept aside as the Supreme Court propped open the great corporate window of opportunity with commerce clause verbiage.

Starting about 1937, the rate of state and local laws voided as “trade barriers” by the Supreme Court slowed precipitously. States had finally gotten the message that preserving the general welfare against gross corporate expansionism was no longer constitutionally allowable. In recent decades, the Supreme Court has thrown out state laws only once or twice a year, on average, if that.

State and local governments, having been popped by the Supreme Court’s gavel hundreds of times already, usually don’t even try any more. The “free trade” tarp has been so expertly and consistently tacked down over state and local efforts that rarely is it questioned. In fact, rarely is it even noticed. The “invisible hand” of the market has given way to the “invisible tarp” of a forced trade zone. Forced trade’s footprint? Near-complete coverage in 1999. Ditto, 2009.

Today, as in 1999, we live under a “free trade” regime presided over by a president who campaigned passionately against the ravages of international “free trade” agreements like NAFTA and the WTO’s GATT.4 A decade ago, the masters of the universe were squabbling even before the Teamsters and Turtles took to the streets. They’re still squabbling today. More importantly, they’re still masters of the universe. They learned that they could conduct “business as usual” with impunity.

Efforts to address climate change, protect our bioregions from the depredations of foreign corporations, respond to peak oil (peak “resource,” really), bend our economies toward local food and local energy, and craft the sustainable and locally self-reliant communities the future requires will not be successful unless we learn to focus on and remove the “free trade” tarp that sits undisturbed over local and state governments. Perhaps at the twentieth anniversary of the Battle for Seattle, we will see some signs of that happening.

This article was first published in Synthesis/Regeneration, Vol. 52 (Spring 2010). You can also read the article here.

Notes

Roberts Earns His Keep: The Supreme Court’s “ObamaCare” Decision (2012)

by Jane Anne Morris

 

In the “Obamacare” decision, Chief Justice Roberts masterfully executed what the Zulu call “buffalo horns” — the pincer strategy1. Purchase of health insurance is mandatory (a 5-4 vote), BUT states are not required to expand Medicaid to cover the people who can’t afford insurance (a 7-2 vote). The combination is a perfect way to anger many (excepting most health care and insurance corporations), without helping those most in need, while appearing to set aside partisanship. Continue reading “Roberts Earns His Keep: The Supreme Court’s “ObamaCare” Decision (2012)”

“ObamaCare,” the Constitution, and Democracy: The Heart of the Matter (2012)

by Jane Anne Morris

In 2012, the U.S. Supreme Court will rule on the constitutionality of the Obama Health Care Plan (OHCP), officially the Patient Protection and Affordable Care Act (2010).1 Is OHCP constitutional? What is a defensible and prudent green position on this question? Continue reading ““ObamaCare,” the Constitution, and Democracy: The Heart of the Matter (2012)”

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.

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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