Put the Demos Back Into Democracy

There are two kinds of activist groups, equally (in)effective. Which are you? And why?

Pop-up activists tend their topiary and anguish over bathroom fixtures until… a Big Bad Issue pops up and invigorates them.

Permanent Waves — the second kind of activist group — inhabit longstanding, institutionalized power zip codes nestled among other shrubbery in the nonprofit landscape.
Continue reading “Put the Demos Back Into Democracy”

Decommissioning Corporate “Magic”

Would you like to neutralize corporations’ ability to get so many GOOD laws declared unconstitutional? There’s an “app” for that—-an approach, that is.

Seriously, do you really think it’s unconstitutional to require labels on GMO food? Or to prohibit a dangerous and ecologically harmful activity like fracking? What kind of a screwy constitution are we talking about here?

What if the Martians (or Plutonians) landed and asked why we permitted a gigantic CAFO to produce inferior food while threatening aquifers, ecosystems, community, and quality of life? Not to mention, underselling and disadvantaging local organic food producers. Would we say, yeah, it’s a bummer but we have this sacred document called the Constitution and it says we, uh, have to allow this?

I use the word “magic” (as in corporate magic) advisedly. Magic is misdirection plus mechanics. Almost always, the misdirection (“Watch my right hand carefully, now…”) is more critical than the mechanics. (Dexterity is a matter of practice: just watch bulbous-fingered men playing mandolin or tweeting.) The same is true about how corporations get laws they don’t like voided by courts.

Obviously, in order to counter magic you have to understand it.

First, the Mechanics

Over many decades, corporate lawyers convinced judges that corporations are protected by the Constitution against government action. (A portion, but not all, of these protections comes via so-called “corporate personhood.”) After a high court confirmed these judicial interpretations, legislatures incorporated the changes into law. (This is still going on today, but the groundwork was laid long ago.)

Result: The Constitution both created a government, and set up provisions to protect people from oppressive government. Then the government (state governments, mostly) created corporations as its agents. These corporate agents, really extensions of government, then began claiming that they were more like human persons than creatures of the state, and therefore deserved protection against the government that created them. (If you feel dizzy, you’re getting it. The topology of the situation is a snake shaped like a Mobius strip eating its tail.)

In a nutshell: A corporation (set up by a government professing to act on behalf of the people) claims the protections of people against government, and wields the power of government against people. This is having your cake and eating it too.

Once even a single corporation wins recognition of an expanded constitutional protection, that protection then extends to ALL corporations. They don’t even have to send each other memos.

Quickie example: A county believes a certain business corporation (BadCorp) is reprehensible in its methods, labor policies, and general environmental practices, so it passes a law banning that corporation from doing business within its jurisdiction. (For an example, read up on the anti-chain store laws of the early 20th century. Check page 61 of my book.) BadCorp files a lawsuit claiming that its 14th Amendment constitutional right to equal protection is violated, because other similar corporations are not banned, while BadCorp is singled out. In other words, BadCorp was discriminated against. (I kid you not, this is the language used.) After that (and this started in the late 19th century), all the other corporations went whining to federal courts to claim that they were discriminated against, too. As a result, this and other corporate constitutional protections accreted over the years have made it next to impossible to pass legislation with real effect to control corporations.

That’s the mechanics part. I’ve been writing about it for two decades, and there’s a solid century-and-a-half of legal scholarship on it. But regular people don’t read that, either because it sounds too intimidating or boring, or because…corporate misdirection has deflected their attention.

Now, At Stage Right, the Misdirection

You can almost smell the incense. Mental lights dim, somber susurrus caress the syllables…Con-sti-tuuuu-tion…as we enter the Sacred Text Zone. Imagine that urine-colored parchment with the nearly unreadable loopy script on it. Probably behind glass. With a security guard nearby. Most people are not exactly sure what all’s in it, but they are hesitant to violate it.

Instead of “Keep your eye on my right hand…” the misdirection here begins with people in dark, voluminous robes intoning the word “unconstitutional.” The first misdirection is that even the suggestion that something is unconstitutional makes many people back off (and stop looking into it).

It gets worse, because the misdirection implies that the Constitution itself actually says that corporations have rights (mostly from the Bill of Rights), and protections from other clauses scattered throughout the document. IT DOESNT. Just read it. (Or some of my short vignettes illustrating the point).

The notion that corporations have constitutional protections comes not from the Constitution but from judicial decisions made since the early 19th century. The judges that made these decisions, almost without exception, were wealthy white men with considerable property. Most also had experience working for the railroads, banks, and other dominant corporations of their day.(See pages 76-77 in my book.)

Misdirection Plus Mechanics Equals…

While misdirection makes people afraid to question the Constitution, and unaware that such protections come not from the Constitution but from increasingly free-ranging judicial interpretations (often called judge-made law), activists and other citizens tend to disattend the mechanics of constitutional protections for the legal fiction of the corporation. Which are right out there, in black and white, as plain as that rabbit in the hat.

Here’s the App!
Decommissioning Corporate Magic: The App(roach)

Remove, by passing laws, the handful of corporate protections that corporations have used to neutralize literally tens of thousands of excellent pieces of legislation.

Before your eyes glaze over, consider this. Look up from your screen. People who can install and use numerous apps on complex electronic devices that blink, beep, thump, vibrate and arpeggio at us from all compass directions—are without doubt capable of understanding the points of constitutional law (there, I said it) that keep corporations for the most part out of reach of citizen legislation.

Hundreds of local communities have tried it already, and are making real progress. Visit one or two, to see how that app(roach) works.

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.

Corporate Law Secrets Exposed By Anthropologist (1998/2015)

A Short Preface: The View from 2015…

The piece below, once available as a pamphlet, was written in 1998 to try to induce “activists” to pierce the invisible force field that seems to keep them from reading the history of corporate law. Whether or not it succeeds in that sense, it offers a perspective on current democratic efforts that I thought then and still think is essential before any real progress will be made in turning around national and world trends.

This pamphlet is an effort to help people do their own research on the history of corporate law in their own states. (And this is not the same thing as the history of corporations, the history of labor uprisings, or the history of ecological depredations.)

It sounds intimidating, but in fact it is liberating, because you realize how self-censoring and limited most “activism” is today. This was written while I was working with a group called POCLAD (my time there was 1995-2005), and I have retained references to that group and its work at the time.

In 1998 when this was written, most libraries were still mid-stream in their conversion to largely online materials, and this piece reflects that. But whether you’re doing it online, or turning the crumbly pages of your state’s first corporate charter, the principles of research and search remain largely the same.

This is pamphlet-length, longer than most articles you will read, but it covers not only a lot of history that is not fashionable now, but also, the basics of navigating around a law library. Even if you never intend to cross that threshold, you will learn a lot about how the legal-industrial complex operates.

And, no, I am not a lawyer. Three times I considered it, and I’m still not sorry I decided against it. That didn’t stop me from writing a well-reviewed book on the history of a constitutional clause, and it shouldn’t stop you from barging into the nearest law library. jam

HOW TO RESEARCH THE LEGAL HISTORY OF CORPORATIONS IN YOUR STATE

Introduction

This pamphlet is about how to use the dusty tomes in a law library to reconstruct part of the story of how corporations came to run this country.

This reconstruction will not be a rehash of tales of robber barons, swindlers, and the usual roster of ruthless greed mongers. It will be more like hearing about Adam and Eve, Isaac Newton, or apple pie — but from the apple’s point of view.

The story you are researching is the story of the dismantling of democracy by corporations. Environmental lawyers don’t know this story because they are busy with administrative law, chasing parts per million back and forth between the regulatory agencies and the courts. Corporate lawyers don’t know this story because they work with current corporation law to increase profits further and tighten corporations’ already vise-like grip on the political process. Activists up to their eyeballs in crises find themselves rushing around trying to do what needs to be done, leaving little time to explore why we limit our activism to arenas defined and designed by the corporate opposition.

Your efforts to reconstitute the story of the dismantling of democracy will be easier if you know what you’re looking for, and have some idea of how to use a law library. This guide provides some of both.

It is intended to be used in conjunction with other materials from the Program on Corporations, Law and Democracy (POCLAD). Taken together, they represent an effort to revitalize a perspective on the history of corporations in the U.S. that will help guide your research. (jam note: Today, I would urge you to explore the variety of articles in this Democracy Theme Park blog.)

POCLAD is a group of persons instigating democratic conversations and actions that contest the authority of corporations to define our culture, govern our nations, and plunder the Earth. We work in the tradition of people’s struggles to replace illegitimate and tyrannical institutions with democratic ones that disperse, rather than concentrate, wealth and power. (POCLAD signature statement, 1998.)

* * * * * * * *

When people say that corporations are running the country (and the world), they mean that corporations have used their power to take over the role of governing that in a democracy belongs to the people.

But much current activism involves efforts to adjust corporate behavior without having to reduce corporate power. That’s worth a repeat: Much current activism involves efforts to adjust corporate behavior without having to reduce corporate power. That’s a major flaw in most leftish activism.

Adding a chemical to a list, taking a bird off a list, writing more letters to the Forest Service, putting a labor representative on a task force, or asking a corporation to employ more minorities in its quest to plunder the planet and enslave its inhabitants while enriching the fortunes of a few — will not alter the dominant governance role of corporations. Even if we had time to address each harm one at a time, we would be no closer to having a democracy because we would still not be in control.

The free flow of information and the ferment of public debate are prerequisites for democratic self-governance. Self-governing people do not dump toxic chemicals into their water supply. They do not destroy the resources that their future depends on. They do not blame this or that minority for conditions arising from and sustaining the greed of a few. Corporations do all of these things and more.

If we the people are to live in a sane and just world, we must do more than slow or stop particular corporate harms: we must assume the power of governance that in the United States corporations have usurped over the last century and a half.

The story of how corporations accomplished this usurpation has been hidden but not obliterated. It lives in the traditions of Native Americans, in the songs of labor struggles, and in the lore of immigrant families. Fragments are scattered among footnotes in history books. Much of it is outlined in black and white in the constitutions, laws, and court cases that fill the shelves of law libraries.

Most people who use law libraries today do so in order to preserve, defend, and expand corporate “rights,” corporate property, and corporate profits. Most current legal documents reflect the world view that it is “natural” that corporate “persons” have constitutional rights, that they play a governance role, and that they can and do make or break whole economies and topple governments.

But fifty years ago opinion wasn’t nearly so harmonious. A century ago there was still real debate. And before that, the corporate view was a decidedly minority opinion.

For instance, the Founding Fathers of this nation deserve Hall of Shame membership for failing to recognize Native Americans, Blacks, women and unpropertied white males as possessing the rights of natural persons and citizens. But to their credit, it never occurred to the framers of the Constitution that corporations have the right to due process and equal protection, or First Amendment rights, such rights belonging exclusively to “natural” (i.e., human) persons and having no sensible application to the legal fiction that is the corporation.

Similarly, it was once taken for granted that corporations exist only at the pleasure of the people, that their purpose is to fulfill a public need, and that if they exceed their specific purpose, or fail to adequately perform it, they are to be banished or dissolved by having their corporate charters revoked.

That these ideas seem so shocking today only underlines how much ideological authority we have ceded to corporations.

In your research you will uncover laws that defined corporations as subordinate entities with limited powers, always subject to further amendment to better fit the public interest. Then you will see how corporations responded.

Over a period of many generations, corporate lawyers, in drawing rooms, cloak rooms and courtrooms, worked over our imperfect but promising democracy clause by clause. In all too many instances, when a law got in the way of corporate power, the corporations either got rid of it, weakened it, prevented it from being enforced, got it declared unconstitutional, or influenced the judicial interpretation of it so as to render it inconsequential.

While the rights of most human persons were denied or diminished, corporations acquired by sleight-of-hand constitutional rights of “natural” persons. These newly anointed corporate “persons” claimed and gained constitutional protections for their “property,” which was first construed to be something tangible, expanded to include the intangible and now includes the imaginary.

And, just as the rights of “corporate” persons grew at the expense of the rights of “natural” persons, they grew also at the expense of the rights of “natural” persons who happened to have “jobs.” Workers’ rights to freedom of speech and of assembly, freedom of association, due process, and equal protection before the law, among others, were twisted and suppressed as corporations wrote the laws that defined not only themselves, but the labor “opposition.”

Corporations, once strictly defined by people acting through their legislatures, have since the late 19th century been defining themselves and redefining us. They write the laws and shape the government that supposedly “regulates” them. Corporations essentially define our economy, our society, our jobs, our educational system, and our leisure time. Our state legislatures once defined corporations as subordinate entities, yet now we the people find every aspect of our lives subordinated to corporate “needs.”

Corporation representatives worked a phrase at a time to deconstruct legal doctrines that protected persons, and transmute them through the alchemy of power into doctrines to protect and empower corporations.

In so doing they left a trail of tears in the fabric of democracy. The pattern of the violence they did to the democratic process is like a map that we can read to understand the nature of the damage, and then either work to repair it, or replace it with a more democratic weave.

What you can do in a law library is to trace this process in the context of your own state’s history.

The Special Role of Regulatory Agencies

The three branches of government, as outlined in junior high school civics books, work as follows. The legislative branch makes the laws; the executive branch enforces them; the judicial branch interprets them and determines their constitutionality.

But today, much of the shaping and flexing of corporate power, and activists’ efforts to control it, takes place in what appears to be a fourth venue, regulatory or administrative agencies. Though such agencies (such as OSHA, EPA, the FCC, and the NLRB) are often considered a “fourth branch” of government, they are technically (mostly) part of the executive branch, and the individuals or boards that run them are appointed by the president.

Though there have been administrative agencies since the earliest days of the U.S., regulatory agencies began to appear only in the 1870s, mostly in Midwestern states, where the growing authority of railroad corporations was wreaking havoc on regional economies.

The first federal regulatory agency was the Interstate Commerce Commission in 1887. Increasingly since that time, especially since the New Deal era, citizen activism has been channeled into the regulatory agency arena.

The standard myth to explain why this is so goes something like this.

With technological advances and the filling in of the frontier, life became much more complicated. Big corporations began to combine, form trusts, and stifle competition so that they could control markets. They also did other bad things to human beings and the environment, killed workers who stood up for their rights, and manipulated the economies of whole regions in their quest for huge profits. So, the government set up Regulatory Agencies staffed by objective experts to curb corporate excesses and protect the public.

The story you will see as you reconstruct the history around corporations in your state differs significantly from this convenient myth.

During the last quarter of the 19th century, corporations succeeded in getting the upper hand. Laws that had defined corporations were abandoned and more “enabling” legislation took their place. One example of the defining kind of law, once on the books in many states, is a prohibition against corporations owning stock in other corporations. This simple provision prevented a world of harm. It worked so well that “trusts” were invented as an end-run around it. Common in 1870, such provisions had disappeared by the turn of the century.

The emergence of regulatory agencies heralded the end of the age of defining corporations, and the beginning of the modern era of permitting corporations to define themselves, not the reverse as is commonly believed.

Regulatory agencies were set up with the cooperation, if not at the direct behest, of the biggest corporations, in industry after industry. These agencies functioned to eliminate small pesky rival corporations, stabilize markets and prices, and shield both elected officials and corporations from the wrath of the public.

Today regulatory agencies continue to perform these functions for corporations. In addition, they absorb the energy and resources of countless activist groups in endless wrangling over millions of lines of regulations — regulations which, even if finalized, would never be enforced.

Regulatory agencies, then, are a critical element of the strategy through which corporations downsized the democratic process while taking over governance functions. We are so attuned to the regulatory agency arena that it is often difficult to imagine what other forms our activism might take.

Your legal research will reveal some of the successful legal measures and judicial doctrines that defined corporations for decades before restrictive state corporation laws were replaced by “regulation” efforts that did more to eliminate public input than affect corporate behavior.

The body of law that covers what happens in regulatory agencies is called Administrative Law.

Administrative law, dull as it may sound, is at the core of the system that restricts citizen participation, puts decisions in the hands of supposedly unbiased “experts,” ties up critical issues of the health and welfare of our society in procedural marathons, and favors corporations that possess nearly boundless resources to dominate and obfuscate the administrative process.

Though not popular, regulatory agencies are often accepted as inevitable, as necessary evils. One justification for this view is that our society is now just too complex to do without them. A second justification offered is that the only real alternative to regulation as we know it is the “free market” as some imagine it to be.

As you delve into the early history of corporations in your state, it will become evident that much of the so-called “complexity” we deal with is not so much a cause of the era of regulation as a result of abandoning a defining style of corporate legislation. It will also be apparent that a pattern of huge government subsidies of corporations was well established by 1870, and that the mythical “free market” never existed.

Regulatory agencies give the appearance of placing limits on corporations but function as clever mechanisms to obstruct the influence of ordinary citizens. They are controversial across the political spectrum because they have a tremendous amount of discretion in making decisions. They unquestioningly accept corporate legal definitions of property and contract that place human beings at a tremendous disadvantage. Avenues of appeal, though present, are expensive, time-consuming, resource-intensive, and seldom rewarding to the ordinary citizen. A “victory” often means starting a long process all over again, with slightly changed rules.

In carrying out their duties, regulatory agencies do some things that are a lot like making laws (a legislative function); they enforce their regulations through penalties and other sanctions (an executive function); and they judge compliance with regulations and rules (a judicial function). That they partake of functions of all three supposedly separate branches of government is a second source of controversy about regulatory agencies.

The expansive discretion granted to regulatory agencies, and the concentration of legislative, executive, and judicial powers in them, exacerbates their already anti-democratic bias. In your research, you can contrast this situation to the restrictive and defining language commonly found in early corporation law.

The Corporation Code

In the first half of the nineteenth century, state legislatures created corporations one at a time. Each corporation was established by means of a Special Act of the state legislature. The special acts, or corporate charters, were detailed descriptions of exactly what the corporation could and could not do, often even including a statement of what rates the corporation was permitted to charge.

Most states then went through a transitional period during which there were more general (optional) incorporation laws that applied to certain types of corporations, such as manufacturers, mining corporations, railroad corporations, insurers, and so on. By the end of the 1870s, most states had developed general incorporation statutes that applied to almost all corporations. (Banks were often an exception). These general incorporation statutes underwent periodic reformulations as corporate lawyers shaped them to serve the needs of corporate management; the most recent overhaul occurred during the 1950s.

Research into the history of your own state’s incorporation laws will enable you to compare your state to this general pattern. Early corporation law defined corporations, often one at a time. Twentieth century corporation law (the corporation code) permits corporations to more or less define themselves. People’s influence over corporations withered as states moved toward general incorporation laws, later coupled with regulatory agencies which functioned to entrench large corporations and keep out public influence.

Current corporation codes of all fifty states are much alike, though it is generally recognized that Delaware is the “big easy” state for incorporation. More than half of the Fortune 500 corporations are incorporated in Delaware (where they are “domestic” corporations) and operate in other states as “foreign” corporations after obtaining the requisite “certificate of authority” to do business in that state.

The corporation code is at first difficult for the layperson to understand. Various parts of it will appear to be tedious, boring, unreadable, or incomprehensible by turns. One way to help keep your interest focused is to remember that every single word of a corporation code is there for a reason, and that reason is invariably to concentrate power while diffusing responsibility, or put differently, to internalize power and profits, and externalize responsibility and costs.

To help you understand the current corporation code, you can turn to one of a few kinds of secondary sources. Business Law textbooks can give you a good general picture, but various corporation manuals are better for clause-by-clause analysis.

Your Mission: To Go Where No One Has Gone Before

To get the most out of your research into the legal history of corporations in your state, you must set aside current myths and prevailing wisdom about how things are, how they got this way, and what can be done about them. For this reason we urge you to base your work on primary materials. Secondary materials such as books and articles will be useful, but their perspectives are inevitably shaped by the writer’s biases.

In order to get a picture of the history of corporation law in your state, you will have to examine three basic sources: the state laws, the state constitution, and case law (court cases in which issues concerning corporations are decided).

To a lesser extent, you will have to be familiar with the federal situation as well. The same triumvirate — law, constitution, and court cases — will guide your research. Congressional legislation, the U.S. constitution, and federal court cases all play a role in setting up the background against which your own state’s corporate history stands in relief.

When you go into a law library, you can leave behind the usual self-imposed limitations of conventional activism. You will be using your experience as an activist to analyze the defining law of corporations. You will be stepping outside of the minutiae of regulatory law, into the realm of the law that defines the participants and assigns basic rights. You will see how a citizenry that both welcomes and demands democratic self-governance, views that subordinate legal fiction that is its creation — the corporation.

You will undoubtedly use many sources in your quest to construct the history of corporations in your state, but your core materials are found in a law library. This guide is designed to outline some basic perspectives and questions, and then show you how the resources of a law library can be especially useful.

Law libraries are different from other libraries. No matter how many libraries you have been in, a law library offers special challenges, not the least of which is to avoid being intimidated by THE LAW. But law libraries have things you just can’t get anywhere else, and some of these tidbits are juicy as can be.

The rest of this pamphlet offers a user’s guide to a law library, with special emphasis on reconstructing the legal history of corporations in your state.

Overview of a Law Library

Law libraries are exceedingly well-organized. For example, the references that are used most frequently will be easily accessible, and often duplicate sets are available. There will be plenty of tables to set heavy books on, and there are copy machines all over the place.

A law library is one of the most intensely indexed and cross-referenced places on the planet. Even the indexes are indexed. This is both good news and bad news for the neophyte.

The good news is that if you find material on even the tiniest aspect of your area of concern, following references will lead you to the rest. Once you have learned to use what the library has to offer, you’ll be able to trace something backwards and forwards in time; to the left and right to related topics; inward toward more details or outward towards broader issues; in laws themselves or through specific court cases; and across geographical, political, and jurisdictional boundaries, among other things.

The bad news is that the amount of material available is overwhelming, and even the references are written in code. Sometimes even a single sentence of a statute will be followed by a dozen pages of fine-print references. Once you figure out the system, however, this, too, is good news and you can use it to your advantage.

Geography of a Law Library

Once you recognize a few of the tools that a law library offers, you will see that they are arranged in a handy way, like a chef’s wooden spoons and spatulas.

A law library will be divided into sections. One large section will contain materials about your state: statutes and constitution, court reporters, West’s corresponding digests, and Shepard’s citations.

Another section of the law library will contain federal materials, corresponding to the same categories as the state materials just mentioned.

In a prominent easily accessible place, you will find the encyclopedias, always including Corpus Juris Secundum (CJS) and American Jurisprudence (Am. Jur.) . The reference section will also include dictionaries and other useful secondary materials.

The periodical section of the library will contain law reviews and other law journals.

A law library will contain sections about each state in the country, so even if you are using a law library in Arkansas you will be able to obtain much information about the state corporation laws of Wyoming, should they prove relevant.

Regional clusters will also be apparent. West’s Pacific Reporter volumes are next to the Pacific Digest (West) and Shepard’s Pacific Reporter Citations.

Bills, Laws, Codes, Statutes, and Constitutions

A bill is a proposed law. If that bill is passed by a legislature (a state legislature or the U.S. Congress), and not vetoed by a governor or president, it becomes a law (often called an Act). Laws are published chronologically, by year or by legislative session. Then someone comes along and organizes them by subject or topic into statutes or codes. So, what was first published as (State) Session Laws 1956-7 will be later organized into (State) Statutes 1957 or (State) Code 1957.

Bills become laws (or acts) become codes or statutes.

Every once in a while a state may reorganize its code or statutes into a more accessible form. The new improved form will be called the revised statutes, often abbreviated as

(State) Rev. Stat 1964 or
(State) R.S. 1964

In addition to the plain old version of a state’s code or statutes, there will be an annotated version. This version will be labeled and abbreviated something like (State) Stats. Ann. (You can find much additional information in the annotated version — we will go into this later.)

For example, in Wisconsin

Wis. 1864 G.L. = Wisconsin 1864 General Laws
W.S. 1934 = Wisconsin Statutes 1934
W.R.S. 1951 = Wisconsin Revised Statutes 1951
W.S.A. 1992 = Wisconsin Statutes Annotated 1992

To compile a history of the corporation code in your state, go through the statutes chronologically and note changes. The current annotated state statutes (or code) will provide information about major changes and when they occurred.

Explore the era before your state even had a general corporation code. Read individual corporate charters, and see how they were amended and revoked. Note the ways that state legislature kept corporations on a short leash.

Among the corporate charters you will find acts of the state legislature that revoked or repealed corporate charters. This was common until after the Civil War.

Since the annotated codes or annotated statutes of each state contain the text of and commentary on the state constitution, you can use them to do a similar analysis of changes in your constitution.

The federal system is analogous to the state system. What starts out as a bill, once passed, becomes a law, often called an Act of Congress. Such laws and acts are periodically reorganized into the United States Code, abbreviated U.S.C. The annotated version, an excellent source of references about constitutional questions, is abbreviated as U.S.C.A. Be sure you know where it is; you will use it often.

Courts and Case Law

The collected wisdom of judicial decisions in court cases through the ages is called common law. It stands alongside legislative law (formalized in codes or statutes) and constitutional law in forming the foundations of our society’s legal system.

The court in which a matter is first heard is called a trial court. If a party is not satisfied with the treatment in the trial court, it may in some cases (depending on matters of law not relevant here) appeal to a higher court, often called a court of appeals. If matters are still not settled, the highest court within a jurisdiction comes into play. This high court is often called a supreme court.

This hierarchical structure — court of original jurisdiction, court of appeals, and supreme court — applies to both state and federal courts.

A case may be heard in a federal court as its original jurisdiction, or as a result of an appeal from the highest state court.

Court Cases: How to Find a Case

Let’s start with an example.

This is the case where the U.S. Supreme Court recognized “personhood” of corporations and opened the door for corporations to claim rights under the “due process” and “equal protection” clauses of the 14th Amendment.

Santa Clara County v. Southern Pac. R.R.
118 U.S. 394 (1886) official citation
30 L.Ed. 118 (1886)
6 S.Ct. 1132 (1886)

Here we see an official citation, followed by two parallel citations. These are the three different places where you can find this case.

Cases are reported in volumes called reporters. Cases may be mentioned or discussed in many places, but they are reported in reporters.

The number preceding the abbreviation (that is, 118, 30 or 6) refers to the volume number, whereas the number following the abbreviation (that is, 394, 118 or 1132) refers to the page number where the case begins.

A court case usually has an official citation that reflects its jurisdiction (here, 118 U.S. 394—a United States Supreme Court case). It may also have one or more parallel citations, often referring to unofficial commercial reporters. In this example, 6 S.Ct. 1132 refers to West’s Supreme Court Reporter.

(Do not be misled by the adjective “unofficial.” The unofficial reporters contain more useful annotations, analysis, and references than do the official reporters. A few states use a commercial reporter as their official reporter.)

Other federal courts (the U.S. Court of Appeals, and the U.S. District Courts) have no official reporter, and usually appear as F.2d and F.Supp., respectively.

Famous precedent-setting cases of the past, especially those more than a century old, may have odder-looking citations. Just find the general area on the bookshelves and go back in time.

Here is another favorite from corporation history, even older than the Santa Clara decision, wherein the Supreme Court began “deeming” corporations “citizens” of the chartering state, thereby interpreting the “diversity clause” [U.S. Const., Art. III. Sec. 2] to allow most corporation cases to be heard in the more sympathetic federal courts instead of in the states.

Louisville, Cincinnati & Charleston R.R. v. Letson
2 How. 497 (U.S. 1844)
11 L.Ed. 353 (U.S. 1844)

Go to the section of the library where the U.S. Supreme Court reporters are kept, and go backwards in time on the shelves until you find Howard’s court reports, volume 2, page 497. Or, you could also find this case reported in volume 11 of Lawyer’s Edition, page 353.

State court decisions can also be found in more than one place. They are almost always reported in official state reporters; usually also in unofficial commercial state reporters (like West’s); and always in West’s National Reporter System, which uses a regional approach. The regional divisions are not obvious, so check what region your state belongs to.

(Just to prove the point, N.W. includes Michigan but Pacific includes Oklahoma; N.E. includes Illinois but Vermont is in Atlantic; S.W. includes Kentucky but West Virginia is in S.E.)

Now we’ll turn to a citation of a state court case.

A 1991 Wisconsin court case holding a corporate officer personally liable for violations of the solid and hazardous waste laws is referenced as:

State v. Rollfink (1991)
475 N.W.2d 575 (1991)
162 Wis. 2d 121 (1991)

You can locate this case by going to the state (Wisconsin) reporter, second series, volume 162, or to West’s N.W. reporters, second series, volume 475. In that regional reporter on page 575 you will find a summary of the case and a discussion of other similar cases and secondary sources.

In the case cited above, the state sued Rollfink, so the state name is first as the plaintiff, Rollfink second as defendant.

Secondary Sources

Though the legal history you construct will be based on primary sources (statutes, constitutions, and case law), your search will be faster and easier if you use secondary materials — books, articles, and other references that summarize, analyze, or comment on primary sources.

Dictionaries and textbooks can help you clarify points or better understand what you are reading.

Law review articles are an excellent secondary source. These are focused discussions of aspects or issues in law, found in the journals of law schools.

Law encyclopedias are another excellent secondary source. One such encyclopedia is the Corpus Juris Secundum (CJS) . The CJS contains over 100 volumes and bills itself as “a complete restatement of the entire American law as developed by all reported cases.” Under “Library References” after each section, it gives sources of information in books and law review articles, as well as West’s key numbers. It also cites numerous cases with parallel citations. CJS is not much help regarding statutes, but these are cited in other secondary sources and in reporters.

Starting From a Key Phrase

Sometimes your research starts with a kernel of just a few words.

The phrase “commerce clause” is often mumbled in response to suggestions that states return to the stricter corporation codes and charters of the past, and more vigorously use their “police power” to protect their economy and environment against obvious corporate harms.

How to figure out the significance of the “commerce clause” mantra? Here is one possible route.

1. Look up “commerce clause” in Black’s Law Dictionary. (Getting involved with CJS or other detailed secondary sources at this point will drag out your search.)

Black’s (1990) gets right to the point.

“The provision of U.S. Const. (Art. I. § 8 Cl. 3) which gives Congress exclusive powers over interstate commerce. This power is the basis for a considerable amount of federal legislation and regulation.”

An excellent start. Now you may want to see the clause itself.

2. To do so, go to the U.S.C.A. (U.S. Code Annotated) to the volumes at the end that contain the U.S. Constitution. The clause is there, and dozens of pages of notes as well. There are plenty of references for later research. Scan them and note a 1971 law review article, specific sections of CJS, and the West’s key numbers for a discussion of commerce. (We’ll get to West’s key numbers in a moment.)

You may feel overwhelmed by the wealth of material available. To avoid that sinking feeling, you can find temporary refuge in a less intimidating secondary source.

3. Look up “commerce clause” in a business law textbook. There you will find a thumbnail sketch and a summary of an early case about Robert Fulton’s efforts to secure a monopoly over steamboat traffic. The case is:

Gibbons v. Ogden (1824)
22 U.S.(9 Wheat)1

(In the early days of the U.S. Supreme Court, reports were named after the counselor-at-law who recorded them. In this case, it was Henry Wheaton.)

Suppose now that you want to know if points of law based on this case are still in effect, and/or still cited, or whether the case has just faded away.

4. To find the future life of a decision, one does what is called “shepardizing.” Go to Shepard’s U.S. Citations, in the set that covers vol. 22, and find the case, followed by a list of hundreds of citations. Since this very handy reference looks like several hundred pages of a logarithm table, you must know what you want out of it.

(jam note, 2015: Online resources have largely replaced “shepardizing,” though the term persists. Enter in a case name, and on-screen will appear subsequent “treatment” of the case. Whether it was affirmed, questioned, overturned, and so on.)

The first citation is 6LE23, a parallel citation, abbreviated elsewhere as 6 L.Ed 23. This means that you can find another account of the case in Lawyer’s Edition volume 6. Going to this reporter will give you an 1824 summary and text of the decision.

(Shepard’s uses different abbreviations than most other legal references, but as always, there is a list of abbreviations in the front of each volume.)

The rest of the citations are cases and publications such as law review articles that have cited this (Gibbons v. Ogden) case, from earliest to latest. A lower-case letter precedes some of the citations and indicates, for example, whether the more recent case represents one that follows the original (f) or cites the original case in a dissenting opinion (j).

For example, j175FS893 means that in volume 175 of F. Supp., at page 893, the Gibbons case is cited in a dissent. Going to the nearby F.Supp., you will find the whole case and learn that it was decided in 1959.

Now you know that the Gibbons case is still cited, sometimes in dissents. Suppose that you now want to see how the issue plays in your state, say, Wisconsin.

5. West’s Federal Practice Digest 3d is nearby, among the federal reporters, so use it to look up “commerce.” (You could use any West’s digest — state, regional, or federal — because they all use the same key numbers.) Or, use the West’s key numbers you jotted down from the U.S.C.A.

With the key numbers in hand, walk over to the Wisconsin section of the library. There, look up those same key numbers in West’s Wisconsin Digest, where you find summaries and references to Wisconsin cases concerning the commerce clause.

(Shameless plug: I later wrote a book on the commerce clause, and I highly recommend it. jam, 2015)

Enough of the “commerce clause” example. Some lessons from it.

General Way to Proceed

Lesson 1. First look up phrases, concepts, terms in Black’s Law Dictionary and/or a business law textbook, or even in a World Book Encyclopedia (many law libraries have these, too) before pursuing them in more depth. Most of the major concepts you’ll need are explained succinctly in secondary sources. Try these first to get the big picture.

Black’s or a business law textbook will give you a start on clauses like “commerce,” “due process,” “contracts,” “equal protection,” and “diversity;” terms like ex rel, in re, quo warranto, infra, supra, ex parte, arguendo; or concepts like “comity,” and “police power.” (If you want to later read thousands of pages about their history, you can always do so. They’ll be waiting for you.)

Lesson 2. Use the annotated version of statutes and codes (which will also include the annotated constitution, state or federal). This way you can see what references are available but you don’t have to read them all right away. Pick and choose.

Lesson 3. If you start with an early case and want to see “what happened” to it (has it been affirmed, overturned, ignored, what?) – you can shepardize. You can also use Shepard’s Citations to find recent cases that cite an older one that you know is central. Shepard’s is an invaluable aid to updating your research.

Lesson 4. If you start with a current statute or case, you can (through annotations and/or West key numbers) glean its antecedents. Once you get West’s key numbers for a certain topic, you can go to the West’s digest of your state, another state, or a federal digest, to find a summary of and references to important cases and other references.

Suggested Order of Research

If you are starting from scratch researching the history of corporations in your state, you might try this itinerary.

Read an encyclopedia article on corporations (in a layperson’s encyclopedia, not the CJS).

Look at the annotated version of your state’s current corporation code/statutes.

Look at the annotated version of your state’s current constitution, especially any parts on corporations.

Trace through time changes in your state’s constitution and statutes regarding corporations.

Find (in annotated state statutes/constitution) references to secondary materials about your state’s corporation history. There may be a law review article or even several books on the history of corporations in your state.

Choose a few cases to read over to see how issues are framed and argued.

Construct a roughly chronological summary of how your state’s corporation law granted increasing constitutional rights to corporations as it shifted from defining corporations to attempts to regulate them.

Shortcuts and Reminders

The ABCs. Digests and encyclopedias are arranged alphabetically by topic or subject. Codes and statutes are by topic but not alphabetical. Laws and reporters are arranged in order by year.

That Little Key. West’s digests and many other references utilizing West’s key number system have a drawing of a small gold or silver key on the spine of each volume. (CJS and U.S.C.A. also give West’s key numbers but do not have the little keys on the front.)

When You Need Parallel Citations. If you have only a single citation for a case, but you want parallel citations (especially a West reporter citation so you can use key numbers), you can always go to a Shepard’s, where the first things listed under a case name are parallel citations.

Starting from a Single Case. If you locate a single case of interest, follow this plan.

1. From the West’s report of the case, get West’s key numbers.
2. Use these key numbers in state or federal West’s digests to locate hundreds of comparable cases (and other references besides.)

Where do I find Federation v. Starship Enterprise? If you know only the name of a case, or the name of one party to the case (a corporation, for example), you can locate the case by using a special Shepard’s case index. (jam note: This is now easy to do online.) In order to determine which index to use, you will need to know (or guess at) the jurisdiction (which state or federal court heard the case.) You can use this same index to locate all of the reported cases in which a particularly nasty corporation was a party, should this prove interesting.

What is ALR Fed. ? Most legal references books have a list of abbreviations at the beginning. If this doesn’t work, go to Black’s Law Dictionary.

On Being Online. Most law libraries offer both online computer research services and the “classic” method using “hardcopy,” that is, books with pages. You can use either or both.

With online computer services, the same principles of cross-referencing apply. You will still be checking constitutions, statutes and case law, plus secondary sources like law review articles and encyclopedias. You may be typing instructions on a screen instead of looking up cross-references in a table, but they are just different paths to the light at the end of the tunnel.

Find a How-To Book. In addition to a number of handbooks on how to do legal research in general (in the KF 240 through KF 242 section of the shelves), there are usually also books on how to do legal research in your state.

Where to Go. Try looking for a state law library. Many government agencies have their own (usually smaller) law libraries. You may want to consult William P. Statsky’s Legal Research, Writing, and Analysis, Second Edition (West Publishing Co.,1982). This slim volume is the single best source I have found, and is chock full of useful charts and lists that will make your law research much less frustrating.

A Final Word

Never hesitate to ask for help from a librarian, whether you need general orientation or a specific case. But keep in mind that such assistance will be necessary less often if you have made some effort to familiarize yourself with legal research tools and the overall layout of the library. Try to avoid bursting in five minutes before the library closes looking for “something about corporations and pollution.”

Happy gathering.

—————————

List of abbreviations used in this piece

A. – Annotated
Am Jur. – American Jurisprudence
Ann. – Annotated
CJS – Corpus Juris Secundum
EPA – Environmental Protection Agency
FCC – Federal Communications Commission
G.L. – General Laws
Gen. L. – General Laws
L. Ed. – Lawyer’s Edition
NLRB – National Labor Relations Board
OSHA – Occupational Safety and Health Administration
R.S. – Revised Statutes
Rev. Stat. – Revised Statutes
S. Ct. – Supreme Court
U.S.C. – United States Code
U.S.C.A. – United States Code Annotated

Wrinkle in Ancient Corporate Code Reveals Democracy Remedy (Not for the faint of heart)

Crumbling pages in the rare books room of the Wisconsin State Law Library may hold the key to breaking the corporate stranglehold on the democratic promise so long dormant in the heartland.

I’ve read those pages in that cool, dim room. But you can find the same info in the well-thumbed regular stacks that are only medium-rare. What is rare is for anyone but a historian or lawyer to read them. (Hint).

(Rather than having you read this, I’d like you to go here, but you’re probably not ready yet.)

“Incorporate in minutes: CHEAP, EASY, FAST.” Have you seen those ads? Why is it easier to incorporate than to register to vote, get a driver’s license, or maybe even order a pizza?

Try your luck with this multiple-choice question.

Corporations get their vast power from
A. their brilliant, inventive, plucky, persistent, indefatigable founders’ work and insights
B. US military forces and domestic police protecting their property worldwide
C. a winking conspiracy among judges to invent extra powers for them in the margins of their decisions
D. the sheer popularity and market domination of their amazing products
E. state legislatures

E is the key. A-D all help, with A always overrated and C exaggerated, but state legislatures do the deed.

Those CHEAP, EASY, FAST steps that today allow you to incorporate have a profound impact. Incorporation carves out a handful of chips of power from the block of government sovereignty, and hands them over to corporations. Simply put, some of the power of government is transferred to a corporation. In other words, GOVERNMENT CREATES CORPORATIONS.

(If you’re still reading this, maybe now you’re ready to go here.)

Before incorporation, all you have is a bunch of people, ideas, and resources. AFTER INCORPORATION, you have a company clothed with powers and protections granted and enforced by the full force of government. Law enforcement, courts, agencies, the whole chalupa.

This changes everything. For example, if you’re upset about a corporation doing bad things, you should be even more upset with your government that has granted that corporation the power to do those things.

I heard that many times before I got it. And I only got it when I went to the law library and held in my hands the pages that wrought such transformation. (Ready to go here?)

In a law library, you can hold in your hands the law that a legislature passed to turn that bunch of people and ideas into a corporation with powers of government. They used to do it one at a time. As in, the Octothorp Corporation may raise this amount of money, construct such-and-such a facility, and mine dilithium crystals in these three counties.

That’s amazing enough, that you can literally read the document that breathed power into a corporation. Even more shocking for us today is that if that corporation messed up, didn’t follow legislative instructions, or exceeded powers granted, the same legislature could just pass another law (no judicial intervention needed, thank you very much) and repeal the charter, a process called charter revocation. (Are you ready to see the treasure map to finding a charter revocation?)

That charter revocation—you can also hold it in your hands. Something about seeing this “in the flesh,” as it were, changes the way you understand corporations. It is hypocritcal and inaccurate for lawmakers to intone the equivalent of, Gosh, those darn corporations are so powerful. When in fact every single one of their powers was granted by legislation, voted on by legislators. (And even if first granted by a court, those powers were later ratified in statutes).

So I want you to take two steps that aren’t on many agendas just now.

ONE—Get thee to a law library.

TWO—Realize that the target of citizen activism is not so much corporations (using powers overtly given to them by governments), but the governments themselves that have ratified such a wholesale transfer of power from the people to corporations.

That’s my pitch. I hope you’re ready to go here, to see a pamphlet-length layperson’s tour guide to a law library. Even if you never make it to the library, you’ll learn a thing or two by flipping through the tourist brochure. Perhaps, even enough to turn your attention from corporations to the governments that create and protect them.

Bon voyage, jam

Groundhog Day for Obamacare: Back to the Supremes

Like small-town mayors across the nation on Groundhog Day, the Supreme Court will get to make the call on whether Obamacare casts a shadow.

The Affordable Care Act (ACA, aka Obamacare) is again on its way to the Court for further review, as they say in the NFL. Its future is on the line, but for completely different reasons than the first time in 2012. Continue readingGroundhog Day for Obamacare: Back to the Supremes”

Making a Federal Case Out of It

“Don’t make a federal case out of it.” I used the phrase countless times without understanding its origin. But it turns out it’s full right up to the post-hoc-ergo-propter-hoc with historical significance: lessons about corporations, democracy and local control–what you might call community rights.

Take the train-hits-cow cases. Railroads began a rapid expansion in the US in the 1830s and by 1870 spanned the continent. Farmers had livestock milling around before barbed wire was patented or common, and trains didn’t-wouldn’t-couldn’t always stop for the unfortunate domestic animal standing on the tracks.

Farmers wanted compensation for all the cows wasted by trains. They often got it, even from the big railroad corporations, if they went to state courts, which obviously understood the plight of farmers losing stock to the new Iron Horses.

Another big beef during the early railroad era was that glowing embers from wood-burning steam locomotives wafted off and set fire to farmers’ fields and barns. This barn burning was especially common before railroads began switching to coal in the 1860s. Again, farmers were often able to get compensation if they went to state courts.

Railroad corporations were not keen on paying for kilt cows or burnt barns if they could avoid it. They learned early on that they fared much better in federal courts. Ask a lawyer (Better Call Saul): federal court takes longer, costs more, is farther away, has more onerous procedures, and is harder to win in if you’re an amateur.

Make a federal case out of it: escape the locals and get into federal court. As opposed to traffic court, municipal court, county court or state court. The rules for getting into federal court have changed over time, and there’s no way to summarize them here. But one fairly sure way is to raise a constitutional question. Poring over the constitution looking for corporate handholds has long been a strategy for property seeking relief from local democracy. (My book Gaveling Down the Rabble is all about how it’s done with a single constitutional clause.)

Much of corporate law (and “rights,” and powers) comes out of cases about railroads because they were among the dominant corporations of the 19th century. The take-home message: corporations saw that local control was a threat to their power, but federal jurisdiction (courts, Congress, or the regulatory agencies) could be a ticket for privilege. (For some history, see this.)

A shallow or stylized sense of history can lead to misconceptions. Many people think that the Supreme Court (the feds) has been a stalwart defender of civil rights. Simply not true, and shamefully not true. (See the chapter on civil rights in Gaveling.) But the “federal case” idiom was common in the 1950s because of federal involvement (usually based on the constitution’s COMMERCE clause) in civil rights during those years.

The origin of the phrase seems to be somewhat earlier, in Jimmy Durante’s 1940s reference to the federal government’s use of tax evasion charges to justify going after bootleggers during the Depression. I don’t have any evidence that the phrase was used in the early railroad era, but it captures the essence of corporate efforts to escape protective state and local laws.

If I titled this post “Federalism is So Complex!” none of you would be reading this now. But it is complex, and critical to efforts to reinstate some semblance of local control in our communities. Here are another few relevant tidbits before I close this ramble.

* Federal courts had little to do in the early decades of this nation, but now hear cases on a huge spread of topics and issues. (Gaveling explores this in labor, civil rights, and environmental law, among others). Whether this is good or bad is not obvious.

* The US Congress—not the constitution—determines the powers of federal courts. See my “Look to Congress for Supreme Court Fix.”

* The question of the appropriate relationship between local and federal power involves, among many other things, whether a federal law should be a floor (a minimum standard that states may be stricter than), or a ceiling (a standard that must be met but cannot be exceeded by local laws).

Finally, let’s remember that “local control” is a double-edged sword. If we really believe in local control, we need to insure that it is DEMOCRATIC local control and not feudal party machines in action.

Next post will be about….let’s see, What the Phrase “From Here Till Next Tuesday” Can Tell Us About Corporations.

Happy 2015, jam

jam tip: A great source for train-hits-cow stories and other tales of early corporate constitutional predation is volume one of Morton Horwitz’s The Transformation of American Law (1977). NB: not for the faint of heart.

Is Citizens United Focus a Good Use of Our Time? (2014)

Such a comforting thought—that overturning a single court case can resolve some of society’s biggest problems. With Citizens United, the idea seems to be that huge strides could be made by reversing it, thereby “getting the money out of” elections. It’s our current version of the “silver bullet” myth of old.

Kind of like thinking that bee pollen will cure your cancer. Now, I’m not anti-bee pollen, or anti-herbal remedies, but the human body is a bodaciously complicated place. To think that adding a single substance to your diet (while changing nothing else) will cure a systemic disease is a bit simplistic. The body politic is also complex, as is the problem of how to make it democratic.

As far as court cases are concerned, there may be one or two good prospects for thinking that a reversal might overhaul society. Plessy v. Ferguson, the case that enshrined “separate but equal,” comes to mind, and its effective overturning in 1954 was a huge victory.

I know Plessy, and I know Citizens United, and Citizens United is no Plessy v. Ferguson. How do I know? Because I’ve read Citizens United, and the case it came from, and the Michigan law that was at issue. (I’ve also read Buckley v. Valeo, but we won’t go there now).

Do you have to do that? No, because you can read my very short take on it here. Keywords: money = speech, corporate “personhood,” and McCain-Feingold. Citizens United activism, far from being a silver bullet, is more like a lead weight. I think it actually distracts us from underlying issues.

While I’m at it, there’s a related issue that I’d like to raise. You could gloss it as Campaign Reform (the term I prefer) versus Campaign Finance Reform. Here’s the heart of it: in today’s world, except in a few cases of very low-level public offices, no one can get elected unless they have at least a comfortable middle-class security blanket, and probably much more.

That flat-out eliminates working class or low -income people from the pool of possible elected officials. Is it any wonder that a huge percent of our elected officials are lawyers, or other businesspeople or professionals with secure (to say the least) finances? Am I the only one who would like to see, uh, people of moderate income, low income, and real laborers elected to office once in a while?

Cutting to the point: If we’re serious about having elected officials that come anywhere close to representing the diversity of our society, then we need to do much more than tweak a few of the rules for financing elections. We need to completely rethink how we design the election process. Hence, instead of merely playing around with campaign finance reform, we need to face campaign reform—a bodacious redesign of the campaign idea.

With the help of others, notably labor historian Peter Kellman, I’ve tried to sketch out what this rethinking might involve. You can read it here. It’s not a blueprint, just an effort to broaden our thinking from a tarnished silver bullet, to a very difficult but much more promising path.

Thanks for reading this. Until the next rant, jam

State “Laboratories of Democracy” Threatened, Overlooked (2007)

by Jane Anne Morris

How to be sure that toy under the holiday tree has no lead paint? With only a month of shopping days remaining, the public depends–more than at any other time–on our federal regulatory agencies’ ability to protect us from health and safety risks from toys, clothing, and other goods.

So when an appointed regulator asks the Congress to prevent her agency from doing its job, we should be concerned. The head of the Federal Consumer Product Safety Commission, Nancy A. Nord, actually asked Congress “not to approve the bulk of legislation that would increase the agency’s authority, double its budget and sharply increase its dwindling staff.”1 Small wonder the New York Times put that story on its front page October 29.

Other federal agencies that we might expect to be watchdogs — the Environmental Protection Agency, the Food and Drug Administration, and the Federal Communications Commission — are either hamstrung by resources grossly inadequate to their stated tasks, or worse, staffed by anti-regulatory types, like Nord.

Lost in the irony of Ms. Nord’s embarrassing “No, thanks,” is that federal agencies are but one — albeit an important one — among many ways to address the plethora of challenges we now face.

Remember the Tenth Amendment? “The powers not delegated to the United States, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Justice Louis Brandeis famously lauded state and local governments as “laboratories of democracy” that might show the way.

Long before federal regulatory agencies even existed, local and state governments were seeing to their general welfare. Many are still trying. Yet they face considerable opposition not only from corporations being regulated, which we would expect, but from a federal tribunal that rarely gets the credit for annulling their efforts, and then “bumping up” such matters to the underachieving federal regulators. (My new book, Gaveling Down the Rabble, Apex Press, discusses this in detail).

Take, for instance, the matter of corporate agriculture. A South Dakota constitutional amendment — passed by 59% in 1998 — prohibited most corporate ownership of real estate used for agriculture in the state. In 2004, the U.S. Supreme Court effectively threw it out, on grounds that it was essentially a “trade barrier.” 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.2

The Supreme Court has struck down over 1200 state and local laws.3 Following this lead, lower federal courts struck down countless others. The relentless narrowing of what the Court deems “constitutional” has a chilling effect on lawmakers at all levels, especially state and local, at a time when we need all the help and ideas we can get.

Other examples of thwarted state efforts abound. Take oil spills, for instance. Washington State regulations aimed at insuring proper training, adequate staffing, and other safety measures in the operation of tankers along that state’s coastline were declared unconstitutional by the US Supreme Court in 2000.4 According to the Court’s interpretation, states cannot impose conditions more stringent than those in a weaker federal law. This is part of the Court’s pre-emption doctrine, which it has often applied so that federal law sets not a minimum standard, but a maximum one. Instead of setting a floor for states, the Court has set a ceiling, disallowing the more protective laws that many localities desire.

In 1997, a Maine property tax law encouraging in-state charities to serve Maine residents was declared unconstitutional as interfering with “free trade” among the states. In 1995, the Illinois Consumer Fraud Act outlining relief from unfair or deceptive marketing practices was deemed unconstitutional as applied to an airline corporation. In 1994, an Oregon state law intended to reduce the state’s burden of handling solid waste from out-of-state was declared unconstitutional as a “trade barrier” by the Supreme Court.

Other “progressive” state and local laws concerning protection of water resources, milk labeling (rBGH), conservation of fossil fuels, protecting fledgling industries, bans on products made with prison and child labor, protection of native species, place-of-origin product labeling, toxic waste regulations, support for local business, meat handling standards, and on and on, back to at least the Civil War–have been deep-sixed by Supreme Court rulings based on increasingly arcane, if not inane, doctrines.

The beneficiaries of this “narrowing” have been, for the most part, big corporations. The high court’s pro-corporate doctrines have had the effect of laying down a weighty tarp of “unconstitutionality” over outbreaks of democracy, lest they break out and become pandemic.

Of course, I would like to see strong, functional federal regulatory agencies that do more than act as valets to large corporations. But let’s not forget the role that local and state governments can play, have played, and must again play, in promoting the general welfare.

***********

Jane Anne Morris is a corporate anthropologist. Her new book, Gaveling Down the Rabble: How “Free Trade” is Stealing Our Democracy (Apex Press), explores these and related issues.

(Originally written and published locally in 2007, this was reprinted in the Progressive Populist Jan. 1-15, 2008.)

Notes

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)”