Property, Commerce, Empire and Corporations over People, Communities and Nature

Stoney Bird is a former international corporate business lawyer. He changed course after moving to the Skagit Valley in 1990. He has lived in the York neighborhood in Bellingham since 2011, and endeavors to reduce corporate power over local communities and expose the inadequacy of the so-called “environmental” laws, which he feels are basically there to grant permits for harmful projects.

Part 4

This essay began with the January 2014 issue of Whatcom Watch. For an overview of the series, see that issue.

The Constitution Impedes Majority Rule

We have been told all our lives that in the United States we have “government of the people, by the people and for the people.” What the Constitution sets up is something far distant from that ideal. In fact it sets up government of the rich, by the rich and for the rich, and protects the interests of this class in perpetuity by making the document extremely difficult to amend (except, as we will see, by the Supreme Court).

This is the principle that the framers wanted to perpetuate through the structure of government that they set up. As James Madison said during the debates in Philadelphia — the record of which, as we have seen, was kept secret until 53 years after the event — “[The institutions of government] ought to be so constituted as to protect the minority of the opulent against the majority.”1

While preserving the appearance of representative democracy, the actual structure keeps decisive power as far away from “the people” as possible.

Here’s how it does it.

Both the House of Representatives and the Senate are now elected directly by the people.2 The House is elected every two years, whereas Senators are elected for six-year staggered terms. To take control of both the House and the Senate, “the people” have to put on a sustained campaign of up to eight years.

The Senate is a special affront to democracy, because each state, no matter what its population, is represented equally. Using the figures from the 2010 Census, this means that people living in California (the largest state in that Census) have one Senator for every 18,626,978 people. In Wyoming (the smallest state) there are 281,813 people per Senator. That’s a difference in representation by a factor of 66! If the smallest 26 states band together, they can produce a winning vote in the Senate with a combined population of only 50,368,140 (17.9 percent of the total population).

The President is elected for yet a different term (four years), and is in any event not elected popularly, but by the Electoral College. As we know, this means that often enough the vote in the Electoral College and the popular vote come to different results.3

So that’s three different electoral cycles that “the people” have to take charge of in order to control just these three branches of government. Notably absent from the system that the framers set up is the possibility of removing either individual legislators by recall or even the whole government if they have lost the confidence of the voters. The system of fixed terms means, among other things, that those with the capacity to hire lobbyists have free play with the legislature between elections.

The fourth branch is the Supreme Court. Over this “the people” have no control whatsoever under the system set up by the Constitution. Although the Supreme Court does not have the formal power to legislate, it in fact exercises that power through newly-discovered interpretations of the Constitution or of federal laws virtually every time that it issues a decision. For example, in Citizens United v. Federal Election Commission, the Supreme Court discovered the principle that the First Amendment prohibits the government from restricting independent political expenditures by corporations, associations, or labor unions, a far-reaching rule of Constitutional law that it had not noticed before.4

With this complex of bodies, the chances for “the people” actually to take charge of the government and produce the changes that they need are slight.

“The people” also have no power to amend the Constitution. Amendment requires either a vote of two-thirds of each house of Congress and ratification by the legislature in three-quarters of the states, or a two-thirds vote of a national convention called by Congress at the request of the legislatures of at least two-thirds of the states.5 “The people” have no role except to plead and beg. Contrast this with the role of “the people” in amending state constitutions. For example, in at least Oregon and California, the state constitution can be amended by citizen’s initiative. In other states, for example, New York and Tennessee, constitutional amendments must be submitted to popular referendum for adoption.6 Either way, “the people” have a direct say in what is in the state constitution.

The inequity of equal state representation in the Senate plays a disruptive role in Constitutional amendments, too. The 17 smallest states, with a combined population of 20,902,226 (7.4 percent of the total), can block any amendment before it leaves the Senate. Assuming that the measure passes the Senate (and the House), it would take only the 13 smallest states to block it when it comes to the state legislatures. The 13 smallest have a combined population of only 12,685,242 (4.5 percent of the total). And we think we have democracy, a republic, and majority rule!

Contrary to a commonly-held belief, no other advanced democracy has adopted a form of government with as many restraints on “the people.”7 In many, the chief executive of the government is selected from the leading party in parliament. In none is there the system of judicial review, whereby an unelected court subverts what the duly-elected representatives of the people have decided. In such a parliamentary system, if “the people” succeed in electing a majority in parliament, they also succeed with that one step in having the whole government support their platform.

Oddly, the Constitution does not specify who has the vote.8 It leaves that to the states. In 1789, no state allowed women to vote, or Native Americans, or of course slaves. Most of the states had property qualifications for voting. They had even more stringent property qualifications for elected officials. In other words, those gathered in the Philadelphia conclave could put their minds to rest. The states were already making sure that only the “right people” would have a say.

Apart from these provisions concerning the structure of government, there are several key clauses of the Constitution that the framers wished to protect from amendment because they protected the interests of their class — and still do.

We’ve already mentioned the clauses relating to slavery. Beyond that, perhaps the main clause is the commerce clause, under which Congress has the power to regulate interstate commerce. Under the “jurisprudence” adopted by the Supreme Court, this means that if Congress regulates commerce in some way, the states (not to speak of municipalities) simply have to get out of the way. It means in practice that big business reigns, they being the ones that a) can influence national legislation, and b) take advantage of any national regime of regulation. Not only does the doctrine apply if Congress actually has regulated, it applies in areas where Congress might regulate (the so-called “dormant” commerce clause).

What has big business done with all this? Just to mention a few things: when a local community just doesn’t want what the big business chooses to impose on them – think coal trains and oil trains, for example – the business concerned will often resort to the commerce clause. Under Supreme Court decisions, the business may be entitled to future lost profits if the local community gets in the way of the business’s commerce rights. Impeding the business’s commerce rights is a violation of the business’s “civil rights”, rights they have as “legal persons.” Since it’s a violation of the company’s “civil rights” they are entitled not just to damages, but their legal fees. We’ll get into the problem of corporate personhood a bit later.

In this way, vast portions of our public life have been put under privatized, centralized, pre-emptive control. Remote boards of directors have more to say about what goes on in local communities than the communities do.

Only slightly less important is the contracts clause of the Constitution. The gents gathered in Philadelphia were specifically concerned about the debt relief practices of many states. The debtors in those days were, for the most part, family farm owners who had borrowed money to buy their farms, to build the farm buildings, or to purchase the equipment to run them. In bad times, the states would pass laws to avert the drastic act of foreclosure. These included issuing paper money, allowing interest rate adjustments, and allowing delays in payment. There was no doubt that, on the whole, the loans would eventually be paid off, but the lenders represented in Philadelphia wanted to make sure of receiving the last penny at the time that the pieces of paper involved said that it should be received. Just as in our own time, there was no consideration of the overall social effects if the number of foreclosures became epidemic. Nor was there consideration of whether the contract with that particular debtor was just to begin with. Overall criteria of justice and social policy were out the window. The banks would get their money, and nothing else counted.

Of Course, It’s Not Just the Constitution

The problems of corporate control and ecological collapse that our society is facing certainly do not stem just from what is in the Constitution. Both the Supreme Court, continuing to legislate at every turn, and Congress have played their part, as have both corporate political parties and our corporate media. I went into some of that in the article on the Lewis Powell memorandum that appeared in the February issue of Whatcom Watch.

To recall some of what Congress and the corporate political parties have done, let’s think of NAFTA, the WTO, the repeal of Glass-Steagall, the Telecommunications Act, and the Bankruptcy Act of 2005, under which neither student loans nor obligations under financial derivatives can ever be cleared in bankruptcy. All of these are supported by both Democrats and Republicans. In other words, the vital principle is that the banks always get paid. But take heart: through the massive burden of student debt — now exceeding a trillion dollars9 — we are raising a generation of indentured servants, just like the Founding Fathers!

A major facet of the problem is “corporate legal personhood.” Many people are familiar with the concept, especially since the U.S. Supreme Court decision in Citizens United.10 What they may not know is that the concept has been developing for a long time, actually first coming into existence in the Middle Ages, when entities like universities, monasteries and cities were granted “legal personhood” so that they could make contracts, sue and be sued, and own property. For instance, monks didn’t directly own monastery buildings, the legal entity of the monastery did. What is new in the modern concept of corporate personhood is that it first gave these rights to profit-making businesses, and then extended them to include civil rights. As the sidebar on the previous page shows, the Supreme Court has been dribbling these “rights” since 1886. For the rest of us — sitting here like the proverbial frog in the pot — they are drops of scalding water, now fully disabling to our political and economic life. A big development from the point of view of our political life was the series of decisions in the 1970s (when Lewis Powell was on the Supreme Court) saying that money was speech, and in effect giving those with the most money the greatest sway in the so-called “marketplace of ideas.” We adhere to the principle of “one man, one vote” at the voting booth. In the media (by which those in the voting booths are often guided), we adhere to the principle of “one dollar, one claim on what the media say.”

To put things plainly, the Supreme Court has repeatedly violated a basic principle under which courts must operate: to apply the law, and not to make it. By doing so they are acting lawlessly and subverting the system of government under which they operate. Depending on political perspective, one may applaud or weep at specific instances of these kinds of decisions, but all must weep at a court’s engaging in legislation at all.

In a future article, I’ll look into the anti-democratic features of our winner-take-all electoral system that facilitates corporate control of the parties, suppresses the breadth of political debate, means that in any election most of the people are unrepresented, and has been abandoned by nearly all democracies in the world.

What I hope that I have shown in this essay are the inherently anti-democratic features of the Constitution (exacerbated by the Supreme Court’s unrestrained legislating), the kind of person that gathered in Philadelphia to negotiate it, and how it achieved what they meant to achieve – the appearance, but not the actuality, of a democratic republic. What we have yet to go into (among many other subjects) is how the Constitution is an integral part of the system of ecological rape. That will be the subject of a future essay.

We also have to address another of the fundamental institutions of national government, one that is not provided for in the Constitution, the Federal Reserve.

What Can We Do?

As we have seen, when the framers were faced with a similar question (in their case, they found the Articles of Confederation not elitist enough), they simply took matters into their own hands. It will have appeared in this essay, I hope, that in my opinion there is not much in the Constitution worth saving, and much that is abhorrent.

Government “of the people, by the people, and for the people” is an ideal worth pursuing. We don’t have it. It’s up to us to get it. The powers that be won’t offer it, and will fight like hell to keep the Constitution that we have. So again, IT’S UP TO US!

The Supreme Court Legislates

Ever More Civil Rights for Corporations Beginning in 1886

1886 Equal protection under 14th Amendment

1889 Due process under 14th Amendment

1893 Due process under 5th Amendment

1905 “Substantive due process” under 14th Amendment

1906 Searches and seizures under 4th Amendment

1908 Jury trial under 6th Amendment

1922 Just compensation for “takings” under 5th Amendment – regulation can be deemed a “taking”

1936 Freedom of speech under the 1st Amendment

1947 Corporations have freedom of speech in a union organizing campaign – Taft-Hartley Act

1970 Jury trial in a civil case under 7th Amendment

1976 Contributions to candidates or parties are protected speech under 1st Amendment

1976 Protection from double jeopardy under 5th Amendment

1976 Advertising is protected speech under the 1st Amendment

1977 Spending to support or defeat an initiative or referendum is protected speech under 1st Amendment

1978 Warrant required for OSHA inspection under 4th Amendment

1986 Corporations have “freedom of mind” (and don’t need to include material from advocacy groups in their mailings) under 1st Amendment – freedom to be silent

1996 No requirement to label products containing bovine growth hormone under 1st Amendment

2010 No restraints on independent expenditures for political purposes under 1st Amendment – Citizens United

Endnotes

1. Madison, James, “Notes of Debates in the Federal Convention of 1787,” with an introduction by Adrienne Rich, 1987.

2. Until the 17th Amendment, ratified in 1913, the Senators were appointed by the state legislatures.

3. Most recently in 2000, when Al Gore received a higher popular vote than George Bush and lost in the Electoral College.

4. Citizens United v Federal Election Commission, 558 U.S. ___ (2010), (Docket No. 08-205)

5. Constitution, Art. V.

6. en.wikipedia.org/wiki/Constitutional_amendment#State_constitutions, viewed March 26, 2014.

7. Dahl, Robert A., “How Democratic is the American Constitution,” 2d ed., 2003, p. 41 et seq

8. The 15th Amendment says that the vote may not be denied a person because of “previous condition of servitude,” but there is not positive definition of the qualifications of voters.

9. http://www.consumerfinance.gov/newsroom/student-debt-swells-federal-loans-now-top-a-trillion viewed March 31, 2014.

10. See End Note 4