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

Water

No out-of-state water sales without the approval of the state legislature. That’s how Texas put it in a law passed in 1965. Nebraska’s 1978 law permitted water sales to an adjacent state only if a reciprocity agreement was in place.

Both laws were important steps toward protection of local resources. Steps that might have paved the way for a more self-conscious bioregional awareness, perhaps even a realization that treating water as a commodity is as short-sighted as treating an ecosystem like a factory.

A federal court declared the Texas law unconstitutional in 1966; the Supreme Court declared the Nebraska law unconstitutional in 1982.2 Such declarations send a “chill” to any other states or localities that already have, or are considering, similar laws. The take-home message: don’t even think that you who live there can control local resources.

Hazardous Waste

Fearing the consequences of becoming the “toxic waste dump of the nation,” in 1989 Alabama tightened requirements for waste entering its Emelle waste facility, the largest commercially licensed hazardous waste dump in the US.

The commonsensical measures were reminiscent of rules I recall from my high school chemistry lab. Keep an inventory. Sort and label everything. Don’t mix things together that might explode, or produce dangerous new compounds. Don’t play around with “mystery” ingredients.

The Supreme Court found the law unconstitutional in 1991. Alabama, recognizing that it would have to do the sorting and segregating itself, added a fee to cover costs. This fee was declared unconstitutional in 1992.3

“Regular” Garbage

In Michigan, people sought to improve and clean up their handling of “regular” garbage. A 1978 law encouraged locals to reduce their waste stream, re-use, and recycle. Why penalize conscientious people for their responsible waste practices by making them accept crud from oblivious uber-consumers elsewhere? To prevent Michigan’s safer, more slowly filling landfills from becoming destination sites for sloppy mixed trash from faraway places, potential garbage donors were limited to those with standards comparable to Michigan’s.

The Supreme Court declared these fair and balanced laws unconstitutional in 1992. Michigan’s dumps began filling up with outsider trash, including bulky bottles. In 2003, Wayne County (the Detroit area) passed an ordinance requiring garbage donors to at least have a beverage container recycling law similar to Michigan’s. In 2004, the ordinance was also declared unconstitutional.4

The Supreme Court continues to impose a big chill on state and local efforts to implement responsible waste practices. Similar garbage scenarios played out in other states, with laws declared unconstitutional in the years noted: New Jersey in 1987, Georgia in 1993, Virginia in 2000.5

Labeling

Many other green-leaning laws passed by states were declared “unconstitutional.” A cascade of labeling laws comes to mind. In 1892, a Minnesota law requiring ingredient labeling on baking soda was found unconstitutional. In 1913, the Supreme Court threw out a Wisconsin syrup-labeling law. The same fate met Oregon’s country-of-origin law for imported meat (1967), and Arizona’s law requiring that Arizona cantaloupes be labeled as Arizona cantaloupes (1970). (Author comment: How can this be unconstitutional? Have we lost our minds?) A 1996 Massachusetts law requiring disclosure of ingredients in tobacco products was labeled unconstitutional by federal courts in 2000.6

Prospects for a greener future dim when courts can use the unconstitutional label to deny state efforts to inform consumers about products they purchase.

Energy

Once you get used to the idea that water conservation, responsible waste handling, and state product labeling requirements are “unconstitutional,” perhaps it’s easier to accept that prudent management of energy is, too.

Both domestic and foreign corporations were prohibited from transporting or selling Oklahoma natural gas outside of the state by a 1908 Oklahoma law. In 1911, the Supreme Court ruled the law unconstitutional. A 1919 West Virginia law requiring its public service gas companies to first meet the needs of state residents before selling gas out-of-state was found unconstitutional in 1923. A 1913 New Hampshire law prohibiting a corporation from exporting hydroelectric power generated in-state unless the New Hampshire Public Utility Commission (PUC) gave permission was declared unconstitutional by the Supreme Court in 1982.7

Other “Unconstitutional” Green Laws

Many 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) also garnered the Supreme Court’s unconstitutional tag. Numerous anti-chain store laws were declared unconstitutional: Michigan’s in 1887, Alabama’s in 1888, Indiana’s in 1904, Arkansas’s in 1910, Colorado’s in 1912, Texas’s in 1917, and New Jersey’s in 1930.8

How Is That Unconstitutional? (Let me count the ways)

Every law mentioned above was declared a “trade barrier” — a violation of the commerce clause of the US Constitution9 –and therefore void. The commerce clause “trade barrier” doctrine has been helping corporations escape restrictive laws since the 1870s. But the commerce clause is just one among many malleable Constitutional clauses. Hundreds of other promising green or greenish laws have been declared unconstitutional under other Constitutional “doctrines” jointly crafted over generations by corporate lawyers and federal judges.

The Santa Clara Clause

Another “most favored clause” has been used since the late 1880s, in this manner. A lawyer laments that his corporation (a corporate person) has been discriminated against, thus violating the equal protection clause of the Fourteenth Amendment. (In the early years, the clause was most used by the poor little powerless railroad corporations to escape state regulations and taxes.) The lawyer points out that because other corporations, or human beings (called “natural persons” in law), were being treated differently than his corporation, the law that so discriminated was unconstitutional. When the Supreme Court agreed, it essentially became “unconstitutional” to treat a human person differently from a corporate person. (It also became much more difficult to apply different laws to different kinds of corporations.)

This doctrine has been discussed as “corporate personhood,” notably by Jan Edwards and Molly Morgan. The 1886 Santa Clara County v. Southern Pacific Railroad case was the first case at the Supreme Court level that suggested the application of Fourteenth Amendment protections to corporations. (Keep in mind that in 1873 the Supreme Court had refused to apply Fourteenth Amendment protections to a qualified woman seeking to practice law in Illinois, and in 1875 refused to include a woman’s right to vote in the “privileges and immunities” of citizenship.10 Meanwhile, African-Americans who tried to vote were being lynched, and Native Americans were being killed outright or forced at gunpoint onto “reservations.”) Together with two other railroad cases in the next few years, the Santa Clara case opened the way for further corporate infiltration of the Constitution.11

Corporate Colonization of Other Constitutional Clauses

After the Supreme Court awarded the Fourteenth Amendment’s equal protection, due process, and “privileges and immunities” protections to corporate “persons” (corporations), corporate lawyers lined up with satchels stuffed with laws to be voided. The Supreme Court dutifully complied.

At the same time, using the Fourteenth Amendment as a gateway clause to fuller “personhood,” corporate lawyers moved on to other useful Constitutional clauses. Fourth Amendment protections against unreasonable searches and seizures have kept government inspectors out of corporate file drawers and factories since the early twentieth century; First Amendment protections for corporate “free speech,” especially since the 1970s (and the famous Buckley v. Valeo “money is speech” decision), have enabled corporations to legally buy our elections and our “representatives.”

In addition to the already-mentioned commerce clause, and the Fourteenth, Fourth, and First Amendments, there are a half-dozen other Constitutional “doctrines” used most often to throw out laws tending to green.12

We Could Have Been a Greener Land

These debates about doctrines are sometimes framed as being about the sanctity of the Constitution, sometimes as about the optimal distribution of state versus federal power, sometimes as efforts to plumb the deep inner intentions of the founding fathers, sometimes as a heroic defense of “rights” (the rights of corporate persons). But these glosses are smoke screens, as legal historians have noted, to obscure corporations’ prime directive: strip government of the power to control corporations.13

Every voiding of a green law, under whatever Constitutional doctrine, casts a chill across the land against similar laws. Each invalidation insures greater power and profits for the corporations seeking to stamp out unwelcome regulation. Each such law thrown onto history’s waste dump might have slowed some of the destruction, preserved some of the resources, and heartened the “greens” of past generations.

Sad as it is, it is also encouraging and even inspiring to read through the many green laws that have been thrown out under Constitutional “doctrines” concocted by corporate lawyers to escape government regulation. It is a reminder that there have always been people who recognized the injustice of social systems, and the idiocy of heedless resource extraction. Unfortunately, they were rarely the ones writing the laws in the statehouses, and almost never the ones wearing the robes in the courts.

Where the Problem Lies

The Constitution is not without its flaws, but most of the potentially green laws thrown out as unconstitutional were defeated by specific and usually convoluted pro-corporate interpretations of Constitutional clauses. The Supreme Court, with corporate assistance, devises these interpretations, known as doctrines.

The Congress has enormous power over the Supreme Court. Most of the high court’s power comes not from the Constitution, but from the Judiciary Acts of 1789, 1825, and 1875, and subsequent amendments. The discretion granted by Congressional Acts is now so broad that there is almost no case that the Supreme Court must take, and almost none that the high court cannot “call up” for review. Thus, today, the nine members of the Supreme Court essentially have veto power over every law passed in the US. Without altering or violating the Constitution, the Congress could dramatically limit the Supreme Court’s power to annul state and local laws.

Congress could also tack onto federal legislation the clarification that their laws set minimum standards: floors, not ceilings. It could specifically affirm that states and localities are encouraged to exceed federal minimums, to set higher standards, to be the “laboratories of democracy” that Justice Louis Brandeis lauded. This clarification would constrain the creativity of federal courts in declaring green laws unconstitutional.

So, the road to removing many of the Constitutional doctrines that are obstacles to a greener future definitively goes through the halls of Congress. But it will probably have to visit the courts as well.

Corporate lawyers have become adept over the last century at setting up test cases to get green-leaning laws declared unconstitutional. They have a shelf of boilerplate arguments that have worked time and time again. Each argument uses a clause of the Constitution — the commerce clause, the Fourteenth Amendment, others I have mentioned — to anchor assertions that such things as resource protection, product labeling, conservation, consumer protection, worker safety, and public health are unconstitutional. Green activists can join test cases set up by corporations and their trade groups, or they can set up their own.

What To Do Now

There is no magic model that will take care of this massive problem. Pro-corporate Constitutional doctrines — each as devastating as “separate but equal” — have been built up over generations. Like “separate but equal,” they need to be eliminated. As with “separate but equal,” elimination of them first requires knowledge and understanding of them. This doesn’t mean that we all need to become legal scholars. It does mean that, like the courageous people who wanted to pick their own seats on buses or have coffee at drugstore counters, we must be aware of the problem.

We won’t be in shape to petition Congress, or to mount test cases, until we understand the way the Constitution has been used to frustrate the people’s repeated legislative efforts to go green. More than anything, this understanding requires an attitude change.

When someone — an elected representative, a lawyer, a corporate PR person — tells you that such-and-such a law (that would straightforwardly address some urgent problem) is unconstitutional, don’t apologize and scurry away. Stand your ground and ask, “Why?”

If they’re well-briefed, and even bother to answer, they will respond by mumbling the legalese “commerce clause” or “due process” or some such, and expect you to back off. Ask “How’s that?” and you will have gone further than most people on the green band of the spectrum have gone for some time.

When a green law is declared unconstitutional, that event is a data point, not an end point. Those who oppose a green future do not quit when they lose a case. Their game plan, like a coin, has two sides. Heads is the issue. (This is where they explain that a) chemical X has no environmental or health effects, b) the effects are within legal limits, and c) even if there were effects, they are totally safe, even good for you!). Tails is the cluster of Constitutional arguments that they will use, as they have for many generations, to convince federal judges that the measure is unconstitutional. This dual strategy–issue-plus-doctrine–has served them well.

While we are honking for peace and practicing our three-minute speeches for regulatory hearings, corporate lawyers are just taking the same old arguments off the shelf that have been working, for the most part, for a century or more. Our campaigns, too, need to address both heads (the issue) and tails (the Constitutional doctrines) surrounding whatever problem we are working on.

We need not act like there is an invisible force field around the Constitutional doctrines that protect corporations. States and municipalities defending green laws over many generations have already devised forceful and eloquent arguments against the pro-corporate doctrines increasingly accepted by the courts. These arguments, too, are “on the shelf,” right alongside the twisted pro-corporate doctrines strangling our chance at a green future. They are available to anyone willing to take them up and build a movement around them.

* * *

(Based on remarks made at Synthesis/Regeneration’s “Surviving Climate Change: Producing Less and Enjoying it More” Roundtable, June 2008, St. Louis. First published in Synthesis/Regeneration 49, Spring 2009.)

Notes

  1. Supreme Court cases are identified by name and year only. Other court cases are given the full standard legal citation. References to laws mentioned here can be found in the court cases that declared them unconstitutional.
  2. City of Altus, Okla. v. Carr, 255 F.Supp. 828 (1966); Sporhase v. Nebraska (1982).
  3. In the first case, Nat’l Solid Waste Management v. Alabama, 910 F. 2d 713 (1990), a lower federal court did the declaring. By refusing to review it, the Supreme Court essentially approved the ruling. (Cert. denied in Alabama Dept. of Environmental Management v. Nat’l Solid Waste Management Assn. (1991)). The second case, Chemical Waste Management. v. Hunt (1992), was heard by the Supreme Court.
  4. The first case was Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Nat. Res. (1992). The second case was Nat’l Solid Wastes Mgmt. Assn. v. Charter County of Wayne, 303 F. Supp. 2d 835 (2004).
  5. Philadelphia v. New Jersey (1978); Mullis Tree Service Inc. v. Bibb County, Ga., 822 F. Supp. 738 (M.D. Ga. 1993); Waste Mgmt. Holdings v. Gilmore, 87 F. Supp. 2d 536, E.D.Va. 2000.
  6. Baking soda, In re: Ware, C.C. Minn. (1892), 53 F. 783; syrup, McDermott v. Wisconsin (1913); meat, Short v. Ness Produce Co. (1967); cantaloupes, Pike v. Bruce Church, Inc. (1970); tobacco, Philip Morris Inc. v. Reilly, 113 F.Supp. 2d 129 (2000).
  7. West (Okla. A.G.) v. Kansas Nat. Gas Co. (1911); Penn. v. West Virginia (1923); New England Power Co. v. New Hampshire (1982).
  8. Discussion of hundreds of examples can be found in Jane Anne Morris, Gaveling Down the Rabble: How “Free Trade” is Stealing Our Democracy (Apex Press, 2008). The cases involving the “chain store” laws were: Fargo v. Stevens (1887); Leloup v. Port of Mobile (1888); Fargo v. Hart (1904); Ludwig v. Western Union Tel. Co. (1910); Atchison, T. & S.F. Ry. v. O’Connor (1912); Looney v. Crane Co. (1917); N. J. Bell Tel. Co. v. State Board (1930). State and local efforts to protect their economies against things like chain stores and “big box” stores continued, but tended to use more indirect means, such as zoning details or parts-per-million regulations. Corporate strategies also evolved, often using the Fourteenth Amendment’s equal protection and due process clauses, or other corporate constitutional “rights,” to force their way into communities.
  9. 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.
  10. Bradwell v. The State (1873); Minor v. Happersett (1875).
  11. Santa Clara County v. So. Pac. Railroad (1886) (equal protection); Pembina Mining Co. v. Penn. (1888) (privileges and immunities); Minneapolis & St. Louis Ry. Co. v. Beckwith (1889) (both equal protection and due process).
  12. Among them are the contracts clause, and the supremacy clause. For an excellent discussion and summary of corporations’ Constitutional protections, see Carl J. Mayer, “Personalizing the Impersonal: Corporations and the Bill of Rights,” Hastings Law Journal, vol. 41(1990), pp. 577-667.
  13. George D. Braden, “Umpire to the Federal system,” 10 Univ. of Chicago Law Rev. 27 (1942-3).