IN THE UNITED STATES DISTRICT COURT FOR THE
___________ DISTRICT OF _____________
[CASE CITATION]
DRAFT -- NOT FOR QUOTING OR REPRINTING WITHOUT PERMISSION
OF THE AUTHORS.
BRIEF OF AMICI CURIAE
THE COMMUNITY ENVIRONMENTAL LEGAL DEFENSE FUND, INC.,
THE PROGRAM ON CORPORATIONS, LAW, AND DEMOCRACY, and
RICHARD L. GROSSMAN
SUPPORTING [PARTIES]
Thomas Alan Linzey, Esq. [1]
Daniel E. Brannen, Jr., Esq., Of Counsel
Community Environmental Legal Defense Fund, Inc.
2859 Scotland Road
Chambersburg, Pennsylvania 17201
Counsel for Amici Curiae Community Environmental
Legal Defense Fund, Inc. and The Program
On Corporations, Law, and Democracy
Richard L. Grossman, pro se
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Table of Contents
Table of Authorities [omitted]
Summary of the Argument
I. It is Axiomatic That People Secure and Protect Their
Inalienable Rights to Life, Liberty, Happiness, and a
Republican Form of Government Through the Institution
of Democratic Governments
II. Corporations are Created by State Governments as
Subordinate, Public Entities Through the Chartering Process,
and Thus Cannot Act to Deny People's Rights to Safety,
Liberty, the Pursuit of Happiness, or a Republican Form of
Government Within this Nation's Frame of Governance
III. Over the Past 150 Years, the Judiciary Has
"Found" Corporations Within the U.S. Constitution, and
Bestowed Constitutional Rights Upon Them
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"Finding" Corporations in the Fourteenth Amendment
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Corporations and the Bill of Rights
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(1). "Finding" Corporations in the First Amendment
(2). "Finding" Corporations in the Fourth Amendment
(3). "Finding" Corporations in the Fifth Amendment
(4). "Finding" Corporations in the Contracts and Commerce Clauses
IV. Corporations Illegitimately Wielding
Constitutional Rights of Persons Against People and Communities
Regularly Deny the People Their Inalienable Rights, Including
Their Right to a Republican Form of Government
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Corporate Personhood and the Denial of
People's Inalienable Rights
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Corporate First Amendment Rights and the
Denial of People's Inalienable Rights
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Corporate Privacy Rights and the Denial
of People's Rights to Safety, Security, Health, and Welfare
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Corporate Fifth Amendment Takings and
the Denial of People's Inalienable Rights
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Corporations Wielding the Contracts and
Commerce Clauses Interfere With the People's Inalienable Right
to Life, Liberty, and a Republican Form of Government
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V. This Court Must Dismiss All Constitutional
Claims Brought by [X] Corporation Against [Y] Government Because
the Assertion and Validation of Those Rights Denies the People's
Inalienable Rights, Including Their Right to a Republican Form of
Government
VI. Conclusion
Footnotes
Summary of Argument
The
people of these United States created local, state, and federal
governments to protect, secure, and preserve the people's
inalienable rights, including their rights to life, liberty, and
the pursuit of happiness. It is axiomatic that the people of
these United States -- the source of all governing authority in
this nation -- created governments also to secure the people's
inalienable right that the many should govern, not the few. That
guarantee -- of a republican form of government -- provides the
foundation for securing people's other inalienable rights and
vindicates the actions of people and communities seeking to
secure those rights.
Corporations are created by State governments through the
chartering process. As such, corporations are subordinate,
public entities that cannot usurp the authority that the
sovereign people have delegated to the three branches of
government. Corporations thus lack the authority to deny
people's inalienable rights, including their right to a
republican form of government, and public officials lack the
authority to empower corporations to deny those rights.
Over the past 150 years, the Judiciary has "found" corporations
within the people's documents that establish a frame of
governance for this nation, including the
United
States Constitution. In doing so, Courts have illegitimately bestowed
upon corporations immense constitutional powers of the
Fourteenth,
First,
Fourth, and
Fifth Amendments, and the
expansive powers afforded by the
Contracts and
Commerce Clauses.
Wielding those constitutional rights and freedoms, corporations
regularly and illegitimately deny the people their inalienable
rights, including their most fundamental right to a republican
form of government. Such denials are beyond the authority of the
corporation to exercise.
Such denials are also beyond the authority of the Courts, or any
other branches of government, to confer.
Accordingly, the constitutional claims asserted by the [x
corporation] against [y government] must be dismissed because
those claims deny the people's rights to life and liberty, and
their fundamental right to self-governance.
Argument
I. It is Axiomatic That People Secure and Protect Their
Inalienable Rights to Life, Liberty, Happiness, and a Republican
Form of Government Through the Institution of Democratic
Governments.
If there is one bedrock principle upon which the people of these
United States established local, state, and federal governments,
it is that governments are instituted to secure and protect the
people's inalienable rights, including their right to a
republican form of government.
As eloquently proclaimed by the Declaration of Independence,
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We hold these truths to be self-evident, that all men are
created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life, Liberty,
and the Pursuit of Happiness -- That to secure these rights,
Governments are instituted among Men, deriving their just powers
from the consent of the governed. [2]
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THE DECLARATION OF INDEPENDENCE para. 1 (U.S. 1776).
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That principle, echoed by this nation's colonists throughout the
Resolves of the Continental Congress,
[3] early state
Constitutions,
[4] and the Articles of Confederation,
[5] is
reflected throughout the writings of Locke, Hume, Montesquieu
[6]
that the early colonists used to deepen and strengthen the
American Revolution -- to frame their dispute as one in which
the King and Parliament were incapable of providing a remedy
premised on self-governance.
[7]
The Revolution thus reflected the understanding that people,
otherwise existing in a state of nature, do not relinquish their
inalienable rights when governments are instituted, but that
governments are instituted specifically to guarantee and protect
those freedoms and rights. Thomas Gordon once summarized that
fundamental principle in the form of a question, asking:
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What is Government, but a Trust committed by All, or the Most,
to One, or a Few, who are to attend upon the Affairs of All,
that every one may, with the more Security, attend upon his
own?
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Thomas Gordon, CATO'S LETTERS, No. 38, July 22, 1721.
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Early Americans used the
U.S.
Constitution to codify that understanding by declaring that
a federal government would be formed by the States to protect
and preserve people's rights, stating that:
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We the people of the United States, in Order to form a more
perfect Union, establish Justice, insure domestic Tranquility,
provide for the common defence, promote the
general Welfare, and secure the Blessings of Liberty to
ourselves and our Posterity, do ordain and establish this
Constitution for the United States of America (emphasis added).
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People struggling to drive civil rights for newly freed slaves
into the Constitution following the Civil War fashioned the
Fourteenth Amendment, which refers to inalienable rights as
"privileges and immunities" of citizens. Through that Amendment,
they sought to further guarantee the underlying principle --
that governments are instituted by people to protect rights --
by declaring:
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No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.
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U.S. CONST.
amend. XIV.
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Through the Fourteenth Amendment, the abolitionists
constitutionalized the people's inalienable rights to life,
liberty, and happiness, driving the principles of the
Declaration
of Independence into the
Constitution.
[8]
As scholar Robert J. Reinstein explained:
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[A] national political movement brought the Declaration of
Independence "back into American life." The Declaration was the
secular credo of the abolitionists. The Declaration not only
supported their moral and political assaults on slavery but was
the foundation of their constitutional theories. [9]
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Thus, the founding documents of the States and the United States
codify the understanding that governments are instituted to
secure inalienable rights possessed by people, including their
right to enjoy life and liberty, and the right to pursue and
obtain happiness and safety. Underlying that principle is the
belief that securing those freedoms and rights requires the
institution of a republican form of government, and that the
right to a republican form of government is a separate
guarantee.
[10] That right guarantees that the powers of
governance are vested in the majority, not in the hands of a
privileged minority who might seek to use government to attain
private goals.
[11]
In the words of delegates writing the first Massachusetts
Constitution, "[n]o man, nor corporation, or association of men,
[shall] have any other title to obtain advantages, or particular
and exclusive privileges, distinct from those of the community"
and that if governments are subverted for the "profit, honor, or
private interest of any one man, family, or class of men," then
the fundamental principle underlying the institution of
governments is usurped.
[12]
II. Corporations are Created by State Governments as
Subordinate, Public Entities Through the Chartering Process, and
Thus Cannot Act to Deny People's Rights to Safety, Liberty, the
Pursuit of Happiness, or a Republican Form of Government Within
this Nation's Frame of Governance.
The cause of the American Revolution was the systemic
usurpations of the rights of colonists by the English King and
Parliament.
[13] Those usurpations occurred primarily through the
King's empowerment of eighteenth century corporations of global
trade -- such as the
East India Company -- and through
Parliamentary Acts taxing colonial trade. Oft-cited as the final
spark of the Revolutionary War, the Boston Tea Party was the
direct result of colonial opposition to the East India Company's
use of the English government to enable the Company to
monopolize the tea market in the colonies.
[14]
The signing of the
Declaration
of Independence transformed crown
corporations and royal proprietorships into constitutionalized
states. Elected State legislators, possessing personal knowledge
of the power of English trading corporations,
[15] worked to
ensure that corporations within the new nation would be
controlled and defined exclusively by legislatures.
[16]
Accordingly, people made certain that legislatures issued
charters, one at a time and for a limited number of years.
[17]
They kept a tight hold on corporations by spelling out rules
each business had to follow, holding business owners liable for
harms or injuries, and revoking corporate charters.
[18]
Side by side with control and authority over corporations --
exercised through their elected legislators -- the people
experimented with various forms of enterprise and finance.
Artisans and mechanics owned and managed diverse businesses;
farmers and millers organized profitable cooperatives;
shoemakers created unincorporated business associations.
[19]
Towns routinely promoted agriculture and manufactures. They
subsidized farmers, public warehouses, and municipal markets,
protected watersheds, and discouraged overplanting.
[20]
Legislatures also chartered profit-making corporations to build
turnpikes, canals, and bridges, declaring that corporations
could only be chartered for "public purposes."
[21] By the
beginning of the 1800's, only some three hundred such charters
had been granted.
Many people argued that under the
Constitution
no business could
be granted special corporate privileges. Others worried that
once incorporators amassed wealth, they would control jobs and
markets, buy the newspapers, and dominate elections and the
courts.
[22]
Premised upon the widespread public knowledge of the powers
wrought by English corporations and the people's opposition to
them, early legislators granted few charters, and only after
long, hard debate. Legislators usually denied charters to
would-be incorporators when communities opposed the proposed
corporation.
[23]
People shared the belief that granting charters was their
exclusive right. Moreover, as the Supreme Court of Virginia
reasoned in 1809, if the applicants'
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object is merely "private" or selfish; if it is detrimental to,
or not promotive of, the public good, they have no adequate
claim upon the legislature for the privileges.
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Morton J. Horwitz, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860
112 (1977).
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States limited corporate charters to a set number of years.
Maryland legislators restricted manufacturing charters to fifty
years, and most others to thirty. Pennsylvania limited
manufacturing charters to twenty years. Unless a legislature
renewed an expiring charter, the corporation was dissolved and
its assets divided among shareholders.
Citizen authority clauses dictated rules for issuing stock, for
shareholder voting, for obtaining corporate information, for
paying dividends and keeping records. They limited
capitalization, debts, land holdings, and sometimes profits.
They required a company's accounting books to be turned over to
a legislature upon request.
Interlocking directorates were outlawed. Shareholders had the
right to remove directors at will. Some state laws required
banks to make loans for local manufacturing, fishing, and
agricultural enterprises, and to the states themselves. Banking
corporations were forbidden to engage in trade. Most state
legislatures provided that directors and stockholders remained
personally liable for debts and harms caused by their
corporations. One corporation could not own another, or own
shares in other corporations. In short, corporations were
nothing more than what the people defined them to be through
legislation, and possessed only those rights granted by such
legislation.
[24]
The people of these United States did not want business owners
hidden behind legal shields, but in clear sight. As the
Pennsylvania legislature declared in 1834:
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A corporation in law is just what the incorporating act makes
it. It is the creature of the law and may be moulded to any
shape or for any purpose that the Legislature may deem most
conducive for the general good.
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Carter Goodrich, THE GOVERNMENT AND THE ECONOMY, 1783-1861 374
(1967).
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People believed that when a corporation subverted the
fundamental purpose for which governments were instituted,
legislatures should dissolve the corporation. Accordingly, all
states adopted corporate charter revocation laws to codify the
common law writ of
quo warranto ("by what authority") --
not only to revoke the charters of specific corporations, but to
recognize that a corporation exceeding its limited authority
injures the entire body politic.
[25]
This short history of corporations in these United States
reveals that corporations -- because of the American
revolutionaries' successful resistance to illegitimate rule --
were chartered as merely one of many subordinate, public
entities used by the people to achieve the fundamental purposes
for which governments were instituted.
It is well settled law that corporations are creations of the
state.
[26] The United States Supreme Court has reaffirmed the
principle that corporations are "creatures of the state" in at
least thirty-six different rulings.
[27] It is also well-settled
law that the Constitution not only protects people against the
"State itself," but also against "all of its creatures."
See
West Virginia
State Board of Education v. Barnette, 319 U.S. 624, 637
(1943).
As public creations, corporations lack any authority within this
nation's frame of governance to deny people's inalienable rights
to life, liberty, safety, security, health, and freedom, or to
interfere with the operation of the people's republican
governments.
III. Over the Past 150 Years, the Judiciary Has "Found"
Corporations Within the U.S. Constitution, and Bestowed
Constitutional Rights Upon Them.
Over the past 150 years of existence of the United States, the
judiciary has conferred constitutional protections -- once
intended to protect only natural persons -- upon corporations.
The method by which the judiciary has conferred rights upon
corporations has consisted of "finding" corporations in the
Fourteenth
Amendment, the
First Amendment, the
Fourth Amendment, the
Fifth Amendment, and
Contracts and
Commerce
the Clauses of the
Constitution.
[28]
A. "Finding" Corporations in the Fourteenth Amendment
After political expedience convinced Abraham Lincoln to use the
Civil War to outlaw slavery, people forced the federal
government to pass the
Civil
Rights Act of 1866 and constitutional amendments to give
rights to newly freed slaves, which the drafters of the
Constitution failed to define as
"persons."
[29]
Adopted in 1868, Section 1 of the Fourteenth Amendment says:
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All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall make
or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any state
deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction
the equal protection of the laws.
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The guarantees of the
Fourteenth
Amendment have been expanded to include a litany of personal liberty
rights.
[30]
Working for corporate clients enriched and empowered by the
Civil War, lawyers began persuading judges to use the language
of the Fourteenth Amendment to overturn state legislation
originally intended to subordinate corporations. Their efforts
led to a transformation of the law, undermining the republican
frame of governance. As Justice Brennan has declared, "by 1871,
it was well understood that corporations should be treated as
natural persons for virtually all purposes of constitutional and
statutory analysis."
Monell v.
Department of Social Services of the City of New York,
436 U.S. 658, 687 (1978).
In
San Mateo v. Southern Pacific R. Co., 13 F. 722
(C.C.D. Cal. 1882), corporate lawyers attacked a provision of
the California constitution that assessed property taxes against
railroad corporations differently from assessments for
non-corporate properties. Attorneys for the railroad companies
argued that by taxing their property differently from the
property of natural persons, California violated corporate
"rights" secured by the
Equal
Protection Clause of the Fourteenth Amendment.
When the case reached oral argument in the Supreme Court in
1885, Roscoe Conkling, a former member of the joint
congressional committee that had crafted the
Fourteenth
Amendment -- and lawyer for the Southern Pacific Railroad
Company -- suggested to the Court that the committee had
corporations in mind when it put pen to paper in 1866: "[a]t the
time the Fourteenth Amendment was ratified," Conkling alleged,
"individuals and joint stock companies were appealing for
congressional and administrative protection against invidious
and discriminating State and local taxes." Conkling then
intimated that the drafters of the Fourteenth Amendment had
purposely used the word "persons" -- instead of "citizens" -- to
specifically shield corporations from those State and local
taxes.
[31]
The parties settled
San Mateo before the Supreme Court
announced a decision. During oral argument in another
California railroad taxation case several years later,
Santa Clara County v. Southern
Pacific Railroad Company, 118 U.S. 394 (1886), Chief
Justice Morrison Waite accepted Conkling's proclamation, declaring:
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[t]he Court does not wish to hear arguments on the question
whether the provision of the 14th Amendment to the Constitution
which forbids a State to deny to any person within its
jurisdiction the equal protection of the laws, applies to
corporations. We are all of the opinion that it does. [32]
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Three years later, the Court "found" corporations in the Due
Process Clause of the
Fourteenth
Amendment and bestowed Due Process protections upon corporations.
Minneapolis & St.
Louis Railroad Company v. Beckwith, 129 U.S. 26 (1889). The
inclusion of corporations within the Equal Protection and Due
Process Clauses of the Fourteenth Amendment, however, has been
challenged by even Supreme Court jurists.
[33]
Thus, at least from the standpoint of Supreme Court caselaw, did
corporations become "persons" under the
Constitution,
empowered to wield corporate Due Process and Equal Protection rights under
the authority of the Fourteenth Amendment, just like natural
persons. Attempts by the legal community to justify those
conferrals paralleled those judicial developments.
[34]
B. Corporations and the Bill of Rights
Prior to the submission of the
to state legislatures for ratification, eight states had already prefaced
their own Constitutions with a Bill of Rights. Accordingly,
many states conditioned their ratification of the Constitution
upon the addition of a Bill of Rights to the
document.
[35]
In 1789, state delegates succeeded in amending the U.S.
Constitution with a
Bill of Rights
that prohibited the federal government from interfering with
crucial individual freedoms, including the freedoms of speech,
assembly, and petition, protection from unreasonable searches
and seizures, and the right to due process in criminal trials.
As Franklin Delano Roosevelt once keenly observed, "the
Bill of Rights
was put into the
Constitution
not only to protect
minorities against intolerance of majorities, but to protect
majorities against the enthronement of minorities." The Public
Papers and Addresses of Franklin D. Roosevelt 366 (1941).
(1). "Finding" Corporations in the First Amendment
The First Amendment to the U.S. Constitution declares, in part, that
governments shall "make no law. . . abridging the freedom of speech."
U.S.
CONST. amend. I.
In
First
National Bank of Boston v. Bellotti, 435 U.S. 765 (1978),
the Supreme Court "found" corporations in the First Amendment
when the Court threw out a Massachusetts law that prohibited
corporations from spending money to influence legislation
unrelated to their business. The ruling nullified the laws of
thirty states that had adopted similar
legislation.
[36]
Dissenting in
Bellotti, Justice White described the
impact of this decision:
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It has long been recognized, however, that the special status of
corporations has placed them in a position to control vast
amounts of economic power which may, if not regulated, dominate
not only the economy but also the very heart of our democracy,
the electoral process . . . . The State need not permit its own
creation to consume it.
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Bellotti, 435 U.S. at 809 (White, J., dissenting).
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Courts since
Bellotti have explored the contorted metes and
bounds of political,
[37] commercial
[38] and negative
corporate
[39] speech rights without revealing why or how the
Constitution
compels the conclusion that corporations must be empowered by the
First
Amendment.
[40]
They have also avoided any discussion of how the exercise of
those rights by corporations negates the ability of people
to exercise their own First Amendment rights -- thus
preventing people from using their own free speech to
secure their inalienable rights to life and liberty.
In addition, Courts have avoided the interrelated discussion of
how the conferral of First Amendment rights upon corporations
involuntarily subjects the majority to the blunt force of the
speech of the corporate minority -- enabled through the massive
wealth of corporations -- thus nullifying the fundamental
guarantee of a republican form of government.
(2). "Finding" Corporations in the Fourth Amendment
The Fourth Amendment to the U.S. Constitution declares that
"[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated."
U.S.
CONST.
amend. IV.
The Supreme Court "found" corporations in the Fourth Amendment
in
Hale v.
Henkel, 201 U.S. 43 (1906). There, the Court
nullified a grand jury subpoena issued under the
Sherman
Anti-Trust Act during an investigation into unlawful trade and
price fixing actions of tobacco corporations. The subpoena
ordered those corporations to produce documents. The Court
quashed the subpoena, ruling that it constituted an
"unreasonable search and seizure" of the corporations in
violation of the guarantees of the
Fourth Amendment.
As with its
First
Amendment decisions, the Supreme Court -- in
this case and subsequent cases -- has collaterally focused on
the definition of "unreasonable search" rather than explaining
why corporations should be constitutionally shielded from
inspections and other searches that seek to protect the health,
safety, and welfare of the people.
[41] The Courts have also not
explored how granting
Fourth Amendment
rights to corporations subverts republican government by enabling
a corporate minority to unilaterally exempt corporations from
laws adopted by the majority.
(3). "Finding" Corporations in the Fifth Amendment
The Fifth Amendment to the U.S. Constitution declares, in part,
that no person shall be "subject for the same offence to be
twice put in jeopardy of life or limb. . . nor be deprived of
life, liberty, or property, without due process of law; nor
shall private property be taken for public use, without just
compensation."
U.S. CONST.
amend. V.
The Supreme Court "found" corporations in the Fifth Amendment's
Due Process Clause in
Noble
v. Union River Logging R. Co., 147 U.S. 165 (1893),
in which the Court ruled that the grant of a public land
right-of-way to a railroad corporation by the Secretary of
the Interior could not be revoked by a subsequent Secretary
without extending due process of law to the
corporation.
[42] The Court "found" corporations in the Takings
Clause in
Pennsylvania
Coal Co. v. Mahon, 260 U.S. 393 (1922), in which the
Court ruled that coal corporations must be compensated for
property value lost due to laws protecting homes from mine
subsidence.
[43] The Court "found" corporations in the
Double Jeopardy Clause in
Fong Foo
v. United States, 369 U.S. 141 (1962), in which the
Court ruled that a corporation could not be retried after a
court directed a judgment of acquittal during the presentation
of evidence by the
government.
[44]
Courts have, however, avoided any discussion of how the exercise
of judicially conferred
Fifth Amendment
rights by corporations
prevents people from governing to protect their health, safety,
and welfare. Courts have also avoided any discussion of how the
use of Fifth Amendment protections by corporations enables the
corporate minority to evade legislative measures adopted by the
majority to secure those interests -- an entitlement that
negates the people's right to a republican form of government.
(4). "Finding" Corporations in the Contracts and Commerce
Clauses
The Contracts Clause of the Constitution states that "No state
shall . . . pass any . . . law impairing the obligation of
contracts." (Const. Art. I,
§10.) In
Trustees of
Dartmouth College v. Woodward in 1816, the U.S. Supreme
Court used the Contracts Clause to prevent the people of New
Hampshire from turning private Dartmouth College into a public
university.
[45] The citizens of New Hampshire had decided that
public universities were a prerequisite to maintaining a
republican form of government,
[46] and the New Hampshire Supreme
Court had vindicated the people's authority to transform the
College.
[47]
The Commerce Clause states that "The Congress shall have power .
. . to regulate commerce with foreign nations, and among the
several states, and with the Indian tribes." (Const. Art. I,
§8.) The Supreme Court has concocted, within the Commerce
Clause, a "Dormant Commerce Clause" that enables corporations to
use the Courts to overturn state laws adopted to protect the
health, safety, and welfare of people and communities.
[48] As
demonstrated in the
second part of this Brief, the
Commerce and Contracts Clauses are regular weapons in the arsenal of
corporate constitutional rights, wielded by corporations through
the Courts, to deny the inalienable rights of people to life,
liberty, and property.
Courts have avoided any discussion of how Commerce and Contracts
rights, wielded by corporations, enable corporate managers to
strike down laws fashioned by the majority -- thus negating the
Constitutional guarantee of a republican government.
IV. Corporations Illegitimately Wielding Constitutional
Rights of Persons Against People and Communities Regularly Deny
the People Their Inalienable Rights, Including Their Right to a
Republican Form of Government.
As explained by at least one commentator, describing the
fundamental principles that anchor republican governments:
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[i]f all men are by nature perfectly free and equal, there can
then be no claim grounded in nature of one to rule another. . .
. As a statement of right, then, the principle is a universal:
all forms of government derive their legitimacy from the consent
of the governed; all forms of government claiming legitimacy are
subject to the master principle of popular sovereignty and hence
are accountable to the governed for the faithful performance of
their charge. [49]
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The judicial "finding" of corporations in the Constitution
constitutes a long train of usurpations of the people's
inalienable rights, including the people's right to be free --
as a majority -- from governance by a corporate minority. That
bestowal of "corporate rights" comes at a clear cost to people.
As at least one commentator has noted, "the extension of
corporation constitutional rights is a zero-sum game that
diminishes the rights and powers of real individuals."
[50]
Thus,
Fourth
Amendment rights conferred upon corporations deny
people access to information and the ability to protect their
health, welfare, and safety; the bestowal of
First
Amendment rights upon corporations denies people's access to information
to frame questions, and participate in public debates and
elections; the bestowal of equal protection rights upon
corporations prevents people from treating corporations as
subordinate entities. Cumulatively, the judicial conferral of
rights inherently denies the people their ability to govern
themselves.
The cases outlined below show that such assessments are not
ivory tower academic theories, but frightening reality. It is
clear that "finding" corporations within the Constitution has
come only at the expense of nature, communities, democracy, and
the health, safety, and welfare of people. It has also wrested
the authority to govern from the majority, and vested it in a
distinct corporate minority -- thus violating the Constitutional
guarantee of a republican form of government.
A. Corporate Personhood and the Denial of People's
Inalienable Rights
After people of the United States worked to eliminate
slavery
[51]
and drove the adoption of the
Fourteenth
Amendment, the federal government passed civil rights legislation to
empower African Americans to protect their Amendment rights from
infringement by state
governments.
[52]
Today, the
Civil
Rights Act of 1964 is a direct descendant of the original Civil Rights
Acts of
1866
and 1871. Section 1983
[53] of the 1964 legislation
provides:
| |
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory,
subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or
other proper proceeding for redress (emphasis added).
|
|
Because
§1983
is an exercise of Congress' power to enforce §1 of the
Fourteenth Amendment,
[54]
"persons" protected by §1983 are the same "persons" decreed by
the Courts to be protected by the Fourteenth
Amendment.
[55]
Along with establishing liability,
§1988
of the statute allows the recovery of attorneys' fees
and costs, to be awarded to the "person" who was the subject
of the discrimination.
Thus, corporations, by virtue of their judicially conferred
"personhood," wield the Civil Rights Act in unison with the Due
Process and Equal Protection provisions of the
Fourteenth
Amendment to overturn laws and punish elected officials with the
payment of attorneys' fees incurred by the corporations. The
story of how cell phone provider Omnipoint Communications
Corporation forced its way into several communities over the
past decade is illustrative of how corporations routinely use
Fourteenth Amendment rights to deny the right of people and
communities to protect their health and safety.
Omnipoint Corporation is engaged in the business of providing
digital telephone service by constructing antennae for
transmitting radio signals between cellular telephones and
ordinary telephone lines. The radio signals are a low-intensity
form of radiofrequency (RF) electromagnetic radiation.
There exists a large body of evidence that the radiation
emissions from those lines are harmful.
[56] A neuropsychiatrist
testifying before a zoning and planning committee in 1991
explained:
| |
There has been a steady stream of reports of possible health
risks associated with exposure to electromagnetic fields and
MW/Rf (microwave/radiofrequency) radiation from power
substations, high voltage lines and microwave towers. Most
frightening of these are the possible increases in the risk of
cancer and childhood leukemia.
. . . .
In summary, we feel that cellular biology, animal and human
studies show that MW/RF exposure presents a health risk at the
power levels of the proposed antenna and even at the power
levels of the existing antenna . . . . Increased numbers of
cancers have been found in populations exposed to less radiation
than we are receiving now . . . . Our review of the literature
on MW/RF exposure has led us to the sobering conclusion that
living in close proximity to a source such as the proposed
NYNEX/Newton antenna on Waban Hill will increase the risk to
ourselves and to our children of developing cancer. [57]
|
|
In 1998, the Corporation sought to construct a cellular
telephone tower in Chadds Ford Township in eastern Pennsylvania.
Because the municipality's zoning ordinance provided no place
for cell towers, the Corporation filed a variance application to
force its cell tower into the municipality.
Taking the community's concerns about health and safety
seriously, the municipal government denied the Corporation's
application on May 26, 1998. Municipal officials believed that
their exercise of police power, to protect the community, was
based on solid constitutional doctrine. Several Courts have held
that such an exercise of police power is intimately linked to
the preservation of people's inalienable rights. Supreme Court
Justice Gray has likened such an exercise of the municipality's
police power to the preservation of the rights guaranteed by the
Declaration
of Independence and the
Fourteenth
Amendment:
| |
The police power includes all measures for the protection of the
life, the health, the property and the welfare of the
inhabitants, and for the promotion of good order and the public
morals. It covers the suppression of nuisances, whether
injurious to the public health, like unwholesome trades, or to
the public morals, like gambling houses and lottery tickets.
This power, being essential to the maintenance of the authority
of local government, and to the safety and welfare of the
people, is inalienable. As was said by Chief Justice Waite,
referring to earlier decisions to the same effect, "No
legislature can bargain away the public health or the public
morals. The people themselves cannot do it, much less their
servants. The supervision of both these subjects of governmental
power is continuing in its nature, and they are to be dealt with
as the special exigencies of the moment may require. Government
is organized with a view to their preservation, and cannot
divest itself of the power to provide for them. (citations
omitted). [58]
|
|
Courts have specifically recognized the role of a plenary police
power to defend individual rights guaranteed under the
Fourteenth
Amendment and other constitutional provisions. Courts
uniformly agree that the police power cannot be bargained
away.
[59]
The Omnipoint Corporation responded to the municipality's denial
by suing Chadds Ford Township under the federal
Telecommunications
Act of 1996 (TCA) and
§1983 of the
Civil Rights Act. Section 704 of the TCA -- which cellular phone
corporations influenced by wielding First Amendment rights
[60]
-- included a provision that outlawed control by local
government over the "placement, construction, and modification
of personal wireless service facilities on the basis of the
environmental effects of radio frequency emissions." The law
thus compelled elected and appointed officials to trump the
decisions of communities in favor of the private interests of
telecommunications corporations.
Using that section of the Act, the Federal District Court for
the Eastern District of Pennsylvania ruled that Chadds Ford
Township had violated the law, and that the actions of the
Township had deprived the Corporation of its civil rights under
§1983.
The Court then ordered the Township to pay the
Corporation's attorneys' fees.
Omnipoint Communications
Enterprises L.P. v. Zoning Hearing Board of Chadds Ford
Township, No. Civ. A. 98-3299, 1998 WL 764762 (E.D. Pa. Oct.
28, 1998).
After successfully forcing its cell tower into Chadds Ford
Township by harnessing the federal Court, Omnipoint Corporation
officials marched to the town of Wellfleet on Cape Cod Bay in
Massachusetts. There, citizens had organized the Wellfleet
Action Group to oppose installation of the Corporation's cell
tower in the steeple of the First Congregational Church, which
sat in the middle of town. Human health concerns motivated
democratic opposition to the installation.
[61] Wellfleet
residents elected citizen Margo KochRuthe specifically to vote
against the installation, and the Town denied the Corporation's
request to site the cell tower.
[62]
The Corporation then used the
Chadds Ford Township
decision to threaten the Town with a lawsuit if the Planning
Board did not reverse its decision. Citizens of Wellfleet
responded by petitioning the Planning Board to amend its zoning
laws to require 1,500 feet setbacks for cell towers, which would
have forced the Corporation to locate its tower outside
town.
[63] After meeting with lawyers for the Town and the
Corporation behind closed doors, the Planning Board reversed
itself and declined to amend the zoning laws for the Town.
Town selectman Dale Donovan described the result of the
Corporation's wielding of judicially granted constitutional
rights:
| |
Our legal counsel said, "You're dead in the water on this one."
How much of the people's money can we spend to defend something?
Omnipoint's use of the civil rights threat definitely influenced
us. Then you get into serious penalties. The term `civil
liberties' has broadened so dramatically. You're a corporation!
You have property rights, but that's not what civil rights laws
are for. [64]
|
|
Other citizens of Wellfleet were equally bitter in their
assessment. Lynn Hiller, a member of the Wellfleet Action Group
and former official of the National Institutes of Health,
declared, "we learned that corporations like Omnipoint, engorged
with constitutional rights granted by the Courts, now govern our
communities. When the dust settled, we were no longer citizens
of Wellfleet or of this nation. We were not persons under the
law. Any remnants of democracy had been destroyed by the
corporations and the courts."
[65]
By reading the
Constitution
to mandate inclusion of corporations in the
Fourteenth
Amendment, the judiciary has subverted the
clear meaning of that people-driven Amendment. Its use by
corporations -- like the Omnipoint Corporation -- reveals that
instead of being used to protect and secure individual rights,
the Amendment is now wielded -- under the authority and
protection of the Courts -- to deny the rights of people to
protect their health, safety, and welfare. In the process, the
use of the Amendment by the corporate minority automatically
negates the federal guarantee of a republican form of government
-- a democratic form in which a minority is necessarily
prevented from governing the majority.
Justice Black, in his dissent in
Adamson
v. People of the State of California, 332 U.S. 46
(1947), summarized the history of judicial activism
surrounding the Fourteenth Amendment:
| |
It was aimed at restraining and checking the powers of wealth
and privilege. It was to be a charter of liberty for human
rights against property rights. The transformation has been
rapid and complete. It operates today to protect the rights of
property to the detriment of the rights of man. It has become
the Magna Charta of accumulated and organized capital.
|
|
Id. at 85 (quoting Charles Wallace Collins, THE
FOURTEENTH AMENDMENT AND THE STATES 137 (1912)).
[66]
|
|
B. Corporate First Amendment Rights and the Denial of People's
Inalienable Rights.
|
International
Dairy Foods Association v. Amestoy, 92 F.3d 67 (2nd
Cir. 1996) illustrates how corporations -- after being "found"
in the
First
Amendment by the courts -- now wield those constitutional
protections to prevent communities from protecting their
health, safety, and welfare.
Amestoy involved Monsanto Corporation's Bovine
Somatrotropin (rBST or rBGH), a synthetic growth hormone
developed by the Corporation for injection into dairy cows. A
substantial body of evidence exists that the use of rBGH in
dairy cows causes harm both to the cows and the humans that
drink the milk. Jack Kittredge in "Bovine Growth Hormone" says:
| |
A study by a scientist at the University of Illinois in Chicago
in 1996 suggested that IGF-1 in the milk of rBGH-treated cows
may well promote cancer of the breast and colon in humans who
drink such milk.
. . .
A study of U.S. women reported on May 9, 1998, in the British
journal Lancet found a sevenfold increased risk of breast
cancer among premenopausal women younger than age 51 with high
levels of IGF-1 in their blood. A study reported in
Science in January 1988 found a fourfold increase in risk
of prostate cancer among men with the highest levels of IGF-1 in
their blood. [67]
|
|
Many people fear that rBST causes human health problems,
especially since there is no long-term experience with the
synthetic hormone. Others want to avoid using synethetic food
products. Still others know that rBST has caused health problems
in cows,
[68] and worry that small farmers suffer when rBST
drives low milk prices even lower. Responding to some of those
concerns -- and acting within the constitutional constraints
imposed by judicially conferred corporate "rights" -- Vermont
legislators passed a law in April 1994 requiring products made
with rBST to be labeled.
Six nonprofit corporations, all created, funded, and directed by
dairy, grocery, and food processing corporations, then sued the
State of Vermont to use the courts to vindicate corporate First
Amendments rights by striking down the labeling law. They
alleged that the labeling law violated their corporate members'
First Amendment rights to remain silent. Monsanto Corporation
participated in the case as a friend of the court supporting the
plaintiff trade associations.
On a motion for a preliminary injunction, judges in the Second
Circuit Court of Appeals announced their intent to nullify the
labeling law, ruling that the trade associations and the
Monsanto Corporation were likely to succeed with their First
Amendment claims:
| |
Although the Court is sympathetic to the Vermont consumers who
wish to know which products may derive from rBST-treated herds,
their desire is insufficient to permit the State of Vermont to
compel the dairy manufacturers to speak against their will.
...
Accordingly, we hold that consumer curiosity alone is not a
strong enough state interest to sustain the compulsion of even
accurate, factual information.
|
|
Amestoy at 76, 81.
|
|
The decision forced Vermont legislators to subordinate the
rights of the democratic majority to the rights asserted by the
agribusiness corporations by amending state law to make rBST
labeling "voluntary." In a dissenting opinion delivered in the
Amestoy case, Circuit Judge Leval described how the
Second Circuit's decision trampled the basic rights of the
majority:
| |
When the citizens of a state express concerns to the legislature
and the state's lawmaking bodies then pass disclosure
requirements in response to those expressed concerns, it seems
clear (without need for a statutory declaration of purpose) that
the state is acting to vindicate the concerns expressed by its
citizens, and not merely to gratify their "curiosity." Vermont
need not, furthermore, take the position that rBST is harmful to
require its disclosure because of potential health risks. The
mere fact that it does not know whether rBST poses hazards is
sufficient reason to justify disclosure by reason of unknown
potential for harm.
...
The milk producers' invocation of the First Amendment for the
purpose of concealing their use of rBST in milk production is
entitled to scant recognition. They invoke the Amendment's
protection to accomplish exactly what the Amendment opposes.
|
|
Amestoy at 76, 81.
|
|
In
First
National Bank of Boston v. Bellotti, the Supreme Court
used the
First
Amendment to nullify a state law banning
corporate spending on political referenda.
[69] In that case,
national banking associations and business corporations filed
suit to overturn a Massachusetts law prohibiting them from
"making contributions or expenditures to influence the outcome
of a vote on any question submitted to voters."
Id. at
765. The Supreme Judicial Court of Massachusetts declared that
the fundamental issue raised by the challenge was whether the
First Amendment protected corporations from a law barring their
involvement in the referenda process.
[70] Answering in the
negative, the Massachusetts Court upheld the constitutionality
of the statute.
[71]
On appeal to the United States Supreme Court, Justice Powell,
writing for the majority, rephrased the question framed by both
the Massachusetts Court and the Massachusetts legislature,
declaring:
| |
The court below framed the principal question in this case as
whether and to what extent corporations have First Amendment
rights. We believe that the court posed the wrong question. . .
. The proper question therefore is not whether corporations
"have" First Amendment rights, and if so, whether they are
coextensive with those of natural persons. Instead, the question
must be whether [the statute] abridges expression that the First
Amendment was meant to protect. We hold that it does.
|
|
Id. at 776.
|
|
The Court then explained that "[i]f the speakers were not
corporations, no one would suggest that the State could silence
their proposed speech. It is the type of speech indispensable to
decisionmaking in a democracy, and this is no less true because
the speech comes from a corporation rather than an individual."
Id. at 777.
In
Central
Hudson Gas & Electric Corp. v. Public Service Commission of New
York, 447 U.S. 557 (1980), the U.S.
Supreme Court nullified a New York regulation -- adopted by the
New York Public Service Commission during the energy shortages
of the 1970's -- that banned utility corporations from promoting
the use of electricity. Holding that the ban unconstitutionally
"suppressed speech," the Court declared that the "commercial"
speech controlled by the law was protected by First Amendment
constitutional guarantees.
[72]
Thus, in
Amestoy,
Bellotti, and
Central Hudson,
the Court's vindication of
First Amendment
constitutional guarantees for corporations resulted in a denial
of the people's rights. In
Amestoy, the people of Vermont
were denied their inalienable right to life, safety, and health
as a result of being prevented from learning the contents of
their food. In
Bellotti, the people of Massachusetts were
denied the liberty of discussing and adopting referenda without
the interference of corporate spending. In
Central
Hudson, the people of New York were prevented from taking
key steps towards adopting a sustainable energy policy in the
State.
These cases placed a corporate minority in dominant positions to
control the laws that could be adopted by the majority of
Vermont, New York, and Massachusetts residents. As such, the
judicial enabling of corporations through the conferral of
First Amendment rights negated the people's right to self-governance through a
republican form of government, and created far-reaching adverse
impacts on human, ecological, and economic health.
|
|
C. Corporate Privacy Rights and the Denial of People's Rights to
Safety, Security, Health, and Welfare
|
As a result of the judiciary "finding" corporations in the
Fourth Amendment, corporations are able to prevent people from implementing and
enforcing laws that prevent worker deaths, diseases, and
occupational injuries.
The work of the Occupational Safety and Health Administration
(OSHA) is a case-in-point. According to the National Safety
Council, at least 39,300 work fatalities and 8 million work
related injuries are reported annually, with 240,000 of those
injuries resulting in permanent disability. In addition, leaders
in the field of occupational medicine calculate that between
40,000 and 70,000 deaths annually are attributed to occupational
disease, and that an additional 350,000 non-fatal occupational
illness cases are reported each year.
[73]
Yet corporations have used judicially conferred privacy rights
under the
Fourth
Amendment to prevent the Secretary of Labor
from protecting workers.
Marshall
v. Barlow's Inc., 436
U.S. 307 (1978), involved
§8(a)
of the federal
Occupational
Safety and Health Act of 1970, which directed the
Secretary of Labor to inspect work areas for safety and health
hazards. When an OSHA inspector attempted to search Barlow's
Inc., an electrical and plumbing installation business in
Pocatello, Idaho, in September 1975, the president of Barlow's
refused to allow the inspection. The president maintained his
opposition when the inspector returned three months later with a
federal district court order requiring an inspection under the
Act. The Corporation then turned to the courts seeking
injunctive relief under the Fourth Amendment to nullify parts
of the Act and prevent the inspections.
Id. at 309-10.
The Supreme Court ruled that a corporation's Fourth Amendment
rights make warrantless inspections unconstitutional.
Id.
at 315. Other courts have nullified enforcement actions against
corporations based on similar assertions of "corporate
rights."
[74]
As in
Hale,
[75]
the judiciary's conferral of
Fourth Amendment rights onto corporations also enables corporations to
shield themselves from investigations pursued by the people's
elected officials. In
Federal
Trade Commission v. American Tobacco Co., 264 U.S. 298
(1924), the U.S. Senate directed the Federal Trade Commission
to investigate several tobacco corporations for engaging in
unfair competition practices through the manipulation of
tobacco prices. To carry out the directive, the Commission
ordered the American Tobacco Company and P. Lorillard Company
to produce corporate books and papers. The corporations
refused, claiming that Fourth Amendment protections shielded
them from the authority of Congress. The Federal Trade
Commission brought suit to compel production of the
documents.
The U.S. Supreme Court agreed with the tobacco corporations,
proclaiming that it was "contrary to the first principles of
justice to allow" the search, and declared that "we cannot
attribute to Congress an intent to defy the
Fourth Amendment or even to come so near to doing so as to raise
a serious question of constitutional law."
Id. at 307 (citations
omitted).
[76]
Thus, the judicial conferral of
Fourth Amendment
rights onto corporations denies the right of people to make inspections and
conduct investigations to protect their health, safety, and
welfare. In addition, by enabling corporations to nullify health
and safety laws, the judiciary has severed the people's
constitutional guarantee to a form of government that protects
the majority from rule by a minority.
|
|
D. Corporate Fifth Amendment Takings and the Denial of People's
Inalienable Rights
|
The judiciary's conferral of constitutional rights upon
corporations threatens not only the lives and safety of people,
but also the health of the land, air, water, and the natural
systems that support them. Asserting rights under the Takings
Clause of the
Fifth
Amendment, corporations routinely prevent elected officials
from carrying out their obligations to protect human and natural
communities.
A case in point is
Del Monte Dunes at Monterey, Ltd. v. City
of Monterey, 95 F.3d 1422 (9th Cir. 1996),
aff'd,
526 U.S. 687
(1999). There, a Corporation wanted to develop a
residential complex on 37.6 ocean-front acres in Monterey,
California. Public officials -- responding to their
constituents and to various laws protecting human and natural
communities -- rejected the corporation's application because
the development would damage native flora and fauna and impact
the habitat of the endangered Smith's Blue Butterfly.
Id.
at 1430-31.
The Corporation eventually sold the parcel of land to the state
of California for $800,000 more than it paid for the property.
It then turned around and sued the Town of Monterey for
violating its "corporate rights" under the Takings, Equal
Protection, and Due Process Clauses of the
Fifth and
Fourteenth
Amendments of the Constitution. The court found in favor of the
Corporation on the first two claims and awarded it damages of
$1.45 million paid from the public treasury.
|
|
E. Corporations Wielding the Contracts and Commerce Clauses
Interfere With the People's Inalienable Right to Life, Liberty,
and a Republican Form of Government
|
As the Omnipoint Corporation did with the
Fourteenth
Amendment
and the Civil Rights Act, corporations have used the courts to
attack laws by wielding the authority of the
Commerce and
Contracts
Clauses. When faced with such claims of "corporate
rights," rural governments and communities are often forced to
the brink of economic ruin by legal costs and fees.
In Centre County, Pennsylvania, for example, when a municipality
passed a law requiring testing of sewage sludge for toxins and
pathogens prior to disposal on farms and mine reclamation sites,
Synagro Inc. filed a nine-count complaint against the
municipality in federal court. Among other allegations, the
Corporation charged Rush Township with violating the
corporation's constitutional rights under the Contracts and
Commerce Clauses. The Township was forced to spend thousands of
taxpayer dollars to dismiss the
Contracts
Clause count on pretrial motions, and the
Commerce
Clause allegation survived pretrial motions to be tried on the
merits.
[77]
Laws to protect farmers, farmland, and people who eat have
recently become a focus of challenges by corporations seeking to
eliminate family farmer competitors and other constraints on the
"corporatization" of agriculture. According to the United States
Department of Agriculture, four corporations now control over
60% of pork production and over 75% of beef production in these
United States.
[78] While corporations have been concentrating
their ownership and control of livestock production, they have
eliminated over 300,000 farmers in the last twenty years. Many
believe that the transformation of farming in these United
States was part of a structural readjustment envisioned by
corporate managers and agricultural agency officials to
concentrate corporate control over agriculture by removing
family farm competitors.
[79]
In 1975, the people of Iowa took action to protect family
farmers and the communities dependent upon them. Iowan farmers,
who had long lead the country in hog production,
[80] were
threatened by the plans of giant meatpacking corporations to
integrate hog production and processing. To protect open and
competitive markets for family farmers, Iowans passed a law
making it illegal for a pork processing corporation to own and
raise hogs in the state. The people of Iowa amended the law many
times over the years to counter corporate efforts to evade the
spirit of the law through creative financial arrangements. The
legislature's votes on some amendments were unanimous.
Iowa's packer ban law stated that its purpose was "to preserve
free and private enterprise, prevent monopoly, and protect
consumers,"
Smithfield Foods, Inc., No. 4:02-cv-90324,
p. 5n.3. Reflecting the fears of Iowa farmers, Iowa officials
feared that "in controlling production, corporations like
Smithfield can also control prices, both of the packaged meat
and of live animals," causing "higher prices at the store and
lower prices for Iowa producers who raise the animals."
[81]
The public record reveals that Iowa's packer ban was an effort
by a cross-section of Iowans to protect themselves from the
economic and environmental harms posed by the vertical
integration and horizontal concentration of hog production.
[82]
Farming organizations, including the Iowa Farm Bureau, Iowa Pork
Producers, and the Iowa Farmers Union, joined community
organizations such as Iowa Citizens for Community Improvement to
support the ban.
[83] As Gordon Allen, an assistant Iowa attorney
general, explained, "the Iowa Legislature wanted to make sure
livestock producers didn't face unfair competition from a packer
that owned its own livestock."
[84] Iowan U.S. Senator Tom Harkin
reflected the belief of the majority "that livestock production
in our state should be in the hands of independent
producers."
[85]
The packer ban, then, was a democratic exercise of the state's
police power, which the Supreme Court described in
Thurlow v.
Massachusetts, 46 U.S. 504, 589-90 (1847), as an act of
self-preservation:
| |
The acknowledged police power of a State . . . is a power
essential to self-preservation, and exists, necessarily, in
every organized community. It is, indeed, the law of nature, and
is possessed by man in his individual capacity. He may resist
that which does him harm, whether he be assailed by an assassin,
or approached by poison. And it is the settled construction of
every regulation of commerce, that, under the sanction of its
general laws, no person can introduce into a community malignant
diseases, or any thing which contaminates its morals, or
endangers its safety. And this is an acknowledged principle
applicable to all general regulations. Individuals in the
enjoyment of their own rights must be careful not to injure the
rights of others.
From the explosive nature of gunpowder, a city may exclude it.
Now this is an article of commerce, and is not known to carry
infectious disease; yet, to guard against a contingent injury, a
city may prohibit its introduction. These exceptions are always
implied in commercial regulations, where the general government
is admitted to have the exclusive power. They are not
regulations of commerce, but acts of self-preservation. And
although they affect commerce to some extent, yet such effect is
the result of the exercise of an undoubted power in the State.
|
|
Responding to the actions of the majority in Iowa, Smithfield
Foods Corporation
[86] joined Murphy Farms LLC and
Prestage-Stoecker Farms, Inc. to sue the State of Iowa in
federal court to nullify the packer ban. The Corporations argued
that the ban violated their rights under the
Commerce
Clause of the
U.S.
Constitution. The federal district court adopted
Smithfield Corporation's Commerce Clause argument and nullified
the law.
Smithfield Foods. Inc., No. 4:02-cv-90324, p. 17.
Agribusiness corporations, wielding judicially conferred
Commerce Clause rights, have also used the courts to strike down
other efforts by communities to resist the corporatization of
agriculture. On August 19, 2003, the federal 8th Circuit Court
of Appeals nullified a state constitutional amendment adopted in
1998 by citizens of South Dakota that banned non-family owned
agribusiness corporations from owning farmland or engaging in
farming.
[87] Agribusiness corporations, the American Farm Bureau
Federation, and other agribusiness interests had sued to
overturn the law, alleging that it violated the "dormant"
Commerce Clause. After finding that the language of the law
passed Commerce Clause scrutiny, the Court proceeded to nullify
the law, contending that the intent of the circulators of the
referenda to eliminate corporations from agriculture violated
the Commerce Clause.
[88]
The conferral of rights by the judiciary upon corporations
through the
Contracts and
Commerce
Clauses has thus enabled corporations to wield those rights to
eliminate the people's ability to make laws to protect their
health, safety, and welfare. In addition to denying those
fundamental and inalienable rights, the bestowal of "corporate
rights" enables corporations -- as a minority -- to dictate
law to a majority, thus violating the people's right to a
republican form of government.
V. This Court Must Dismiss All Constitutional Claims Brought
by [X] Corporation Against [Y] Because the Assertion and
Validation of Those Rights Denies the People's Inalienable
Rights, Including Their Right to a Republican Form of
Government.
The small selection of examples explored in this Brief
[89]
confirm Supreme Court Justice Felix Frankfurter's conclusion
that the history of constitutional law is "the history of the
impact of the modern corporation upon the American scene."
[90]
These examples also demonstrate that the judicial conferral of
constitutional protections upon corporations -- protections that
are then used to deny people's rights -- is utterly contrary to
this nation's framework of governance. Corporations, as
subordinate, public entities, lack any authority to suppress
people's rights and inflict ongoing harms. It is equally clear
that the judiciary lacks the authority to bestow constitutional
rights upon them.
The judicial "finding" of corporate constitutional rights forces
corporate rights into the lawmaking process itself, thereby
inhibiting elected officials and chilling public debate. Thus,
the judicial enablement of corporations enters federal, state,
and municipal legislative Chambers.
Certainly, the courts do not lack the authority -- nor the
responsibility -- to halt these usurpations, thus vindicating
the people's right to a republican form of government. In
In
Re Debs, 158 U.S. 564, 582 (1895), the Supreme Court
declared:
| |
The entire strength of the nation may be used to enforce in any
part of the land the full and free exercise of all national
powers and the security of all rights intrusted by
the
Constitution to its care. The strong arm of the national
government may be put forth to brush away all obstructions to
the freedom of interstate commerce or the transportation of the
mails. If the emergency arises, the army of the nation, and all
its militia, are at the service of the nation, to compel
obedience to its laws.
|
|
In this case, this Court must recognize that the corporation
lacks the authority to assert constitutional claims against one
of the people's duly established governments. This Court has the
responsibility to do no less. Therefore, this Court should
dismiss the constitutional claims asserted by [X] corporation.
To do otherwise continues to validate and affirm legal
principles utterly contrary to those upon which this nation was
founded.
VI. Conclusion
For the reasons outlined in this Brief, amici urge this Court to
dismiss the constitutional claims of [X] corporation.
Submitted this _____ Day of ______, 2003.
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By:
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_______________________________
Thomas Alan Linzey, Esq.
Daniel E. Brannen, Jr., Of Counsel
Community Environmental Legal Defense Fund, Inc.
2859 Scotland Road
Chambersburg, Pennsylvania 17201
Counsel for Amici Curiae Community Environmental
Legal Defense Fund, Inc. and The Program
On Corporations, Law, and Democracy
_______________________________
Richard L. Grossman, pro se
Box 390
Milton Mills, New Hampshire 03852
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Footnotes
This Brief
is a work in process of a joint drafting project,
involving Richard Grossman -- co-founder of the
Program on Corporations, Law,
and Democracy (POCLAD) -- Thomas Linzey,
Esq. -- Staff Attorney for the
Community Environmental Legal
Defense Fund, Inc. -- and Daniel E. Brannen, Jr., Esq. This
Brief is jointly copyrighted by those three individuals with all
rights reserved. Special thanks to Peter Kellman for his input
into the drafting of this Brief. The Authors are eager to engage
reviewers in dialogue about the contents and purposes of this Brief,
and can be reached at info@celdf.org.
As Supreme Court Justice Thurgood Marshall once observed,
however, while the Founding Fathers accurately described the
people's inalienable rights, they failed to extend those rights
to all people. In the Bakke decision, Marshall explained
that "[t]he denial of human rights was etched into the American
Colonies' first attempts at establishing self-government. . . .
The self-evident truths and the unalienable rights were intended
to apply only to white men."
Regents of the
University of California v. Bakke, 438 U.S. 265, 388-89
(1978) (Marshall, J., concurring).
Continental Congress,
Declaration
of Resolves, 14 October 1774 (stating that colonial
representatives "in behalf of themselves, and their constituents,
do claim, demand, and insist on, as their indubitable rights and
liberties; which cannot be legally taken from them, altered or
abridged by any power whatsoever. . .").
See, e.g.,
VIRGINIA
CONST., 29 June 1776
(declaring that "some regular adequate Mode of civil Polity
[must be] speedily adopted" to reverse the "deplorable condition
to which this once happy Country" has been reduced);
Virginia
Declaration of Rights, June 21, 1776 (stating that "all men are
by nature equally free and independent, and have certain
inherent rights, of which, when they enter into a state of
society, they cannot. . . deprive or divest their posterity;
namely, the enjoyment of life and liberty. . . and pursuing and
obtaining happiness and safety");
MASSACHUSETTS
CONST., March 2, 1780 (proclaiming that "the end of the institution,
maintenance and administration of government, is to secure the
existence of the body politic; to protect it; and to furnish the
individuals who compose it, with the power of enjoying, in
safety and tranquility, their natural rights, and the blessings
of life").
- Articles
of Confederation
, 1 March 1781 (declaring that the
"said states hereby severally enter into a firm league of
friendship with each other, for their common defence, the
security of their Liberties, and their mutual and general
welfare").
Those democratic philosophies were, in turn, fomented by
widespread Tudor rebellions and urban insurrections driven by
popular movements that arose in England against monarchy and
nobility. In response to expropriation, enclosures of the
commons, impressments, enslavement, industrial exploitation, and
unprecedented military mobilizations, England experienced the
Cornish Rising (1497), the Lavenham Rising (1525), the
Lincolnshire Rebellion (1536), the Ludgate Prison Riot (1581),
the Beggars' Christmas Riot (1582), the Whitsuntide Riots
(1584), the Plaisterers' Insurrection (1586), the Felt-Makers
Riot (1591), Bacon's Rebellion in the Virginia Colony
(1675-1676) and others. See Peter Linebaugh and Marcus
Rediker, THE MANY-HEADED HYDRA: SAILORS, SLAVES, COMMONERS, AND
THE HIDDEN HISTORY OF THE REVOLUTIONARY ATLANTIC 19, 136 (2000).
"Years of attendance at town meetings had attuned the majority
to elementary concepts, if not to detailed systems; to the idea
of a state of nature, of a social compact, and of consent of the
governed." Oscar Handlin and Mary Flug Handlin, COMMONWEALTH: A
STUDY OF THE ROLE OF GOVERNMENT IN THE AMERICAN ECONOMY,
MASSACHUSETTS 1774-1861 6-7 (1969).
In demanding independence, the colonists abandoned other
remedies that fell short of creating a new nation, including a
request for representation in the English parliament and other
proposals that continued to recognize the English King as the
Sovereign. See, e.g., Letter from the House of
Representatives of Massachusetts to Henry Seymour Conway,
February 13, 1768 (declaring that "[t]he people of this province
would by no means be inclined to petition the parliament for
representation") (reprinted in Harry Alonzo Cushing, ed.,
THE WRITINGS OF SAMUEL ADAMS 191 (1968)).
See Howard J. Graham, Our `Declaratory' Fourteenth
Amendment, 7 STANFORD L. REV. 3, 5 (1954) ("More and more,
Section One is seen to have been a synthesis of the three
clauses and concepts which spearheaded the organized antislavery
movement's constitutional attack on slavery and racial
discrimination"); Robert J. Reinstein, Completing the
Constitution: The Declaration of Independence, Bill of Rights
and Fourteenth Amendment, 66 TEMPLE L. REV. 361 (1993).
Robert J. Reinstein, Completing the Constitution: The
Declaration of Independence, Bill of Rights and Fourteenth
Amendment, 66 TEMPLE L. REV. 361, 378-79 (1993); See
also, Howard J. Graham, The Early Antislavery Backgrounds
of the Fourteenth Amendment, EVERYMAN'S CONSTITUTION at ch.
4 (1968). After adoption of the
Fourteenth
Amendment by
Congress, Speaker of the House Schuyler Colfax spoke in favor of
Section 1: "I will tell you why I love it. It is because it is
the Declaration of Independence placed immutably and forever in
the Constitution." Cong. Globe, 39th Cong., 1st Sess. 2459
(1866).
The guarantee of a republican form of government is a
fundamental underpinning of this nation's founding documents.
See, e.g., U.S.
CONST.
art. IV,
§4
(declaring that "[t]he United States shall guarantee to every State
in this Union a Republican Form of Government"); Virginia Declaration
of Rights, June 12, 1776 (declaring that "all power is vested in, and
consequently derived from, the People; that magistrates are their
trustees and servants, and at all times amenable to them").
See, e.g.,
James Otis, The Rights of the British
Colonies Asserted and Proved, 1764 (declaring "let the
origin of government be placed where it may -- the end of it is
manifestly the good of the whole. . ."); Montesquieu, SPIRIT OF
LAWS, BK. 2, CH. 2, 1748 (stating that "[w]hen the body of the
people is possessed of the supreme power, it is called a
democracy. When the supreme power is lodged in the hands of a
part of the people, it is then an aristocracy"); See
also, Statement of the Berkshire County, Massachusetts,
Representatives, November 17, 1778 (declaring the
proposition "that the Majority should be governed by the
Minority in the first Institution of Government is not only
contrary to the common apprehensions of Mankind in general, but
it contradicts the common Law of Justice and benevolence");
Fitzwilliam Byrdsall, THE HISTORY OF THE LOCO-FOCOS, OR EQUAL
RIGHTS PARTY 169 (reprinted 1967) (quoting the New York
Convention of the Equal Rights Party, which declared that "[t]he
great object of a constitution is, to prevent the officers of
government from assuming powers incompatible with the natural
rights of man").
MASSACHUSETTS CONST., Arts.
VI and
VII (March
2, 1780). See also,
Virginia
Declaration of Rights at 4 (June 12, 1776);
Pennsylvania
Constitution of 1776 at fifth provision (reprinted in Pennsylvania
Legislative Reference Bureau, CONSTITUTIONS OF PENNSYLVANIA/CONSTITUTION
OF THE UNITED STATES 235 (1967)).
See, e.g.,
THE
DECLARATION OF INDEPENDENCE, para. 1
(U.S. 1776) (listing the grievances of the colonists).
James K. Hosmer, SAMUEL ADAMS 212 (stating that the English
Parliament hoped that "the prosperity of the East India Company
would be furthered, which for some time past, owing to the
colonial non-importation agreements, had been obliged to see its
tea accumulate in its warehouses, until the amount reached
17,000,000 pounds").
The East India Company, and its actions in other countries,
features prominently in early colonial pamphlets. See,
e.g., THE ALARM, Number II (October 9, 1773) (declaring that
"the East India Company obtained their exclusive privilege of
Trade to that Country, by Bribery and Corruption. Wonder not
then, that Power thus obtained, at the Expence of the national
Commerce, should be used to the most tyrannical and cruel
Purposes. It is shocking to Humanity to relate the relentless
Barbarity, practiced by the Servants of that Body, on the
helpless Asiatics, a Barbarity fearce equaled even by the most
brutal Savages, or Cortez, the Mexican Conquerer").
Richard L. Grossman, Wresting Governing Authority from
the Corporate Class: Driving People into the Constitution,
1 SEATTLE JOURNAL FOR SOCIAL JUSTICE 147, 149-150 (Spring/Summer
2002); Gregory A. Mark, The Personification of the Business
Corporation in American Law, 54 U.CHICAGO L. REV. 1441
(1987).
See
Louis K. Liggett
Co., v. Lee, 288 U.S. 517 (1933)
(Brandeis, J., dissenting) (stating that "at first the corporate
privilege was granted sparingly; and only when the grant seemed
necessary in order to procure for the community some specific
benefit otherwise unattainable").
For
a summary of the history of early citizen control of
corporations, see Richard L. Grossman and Frank T. Adams,
TAKING CARE OF BUSINESS:
CITIZENSHIP AND THE CHARTER OF INCORPORATION 6-18
(5th Ed. 2002); See also, Adolf A. Berle and Gardiner
C. Means, THE MODERN CORPORATION AND PRIVATE PROPERTY (1933);
Edwin Merrick Dodd, AMERICAN BUSINESS CORPORATIONS UNTIL 1860
(1934); Louis Hartz, ECONOMIC POLICY AND DEMOCRATIC THOUGHT,
PENNSYLVANIA, 1776-1860 (1948); and Thomas Frost, A TREATISE
ON THE INCORPORATION AND ORGANIZATION OF CORPORATIONS 1 (1908).
Oscar Handlin
and Mary Flug Handlin, COMMONWEALTH: A STUDY
OF THE ROLE OF GOVERNMENT IN THE AMERICAN ECONOMY, MASSACHUSETTS
1774-1861 125 (1969).
Id. at 65-66.
Robert Hamilton, THE LAW OF CORPORATIONS 6 (1991).
Richard L. Grossman and Frank T. Adams,
TAKING CARE OF
BUSINESS: CITIZENSHIP AND THE CHARTER OF INCORPORATION 14
(2002) (quoting a New Jersey newspaper which declared that "the
Legislature ought cautiously to refrain from increasing the
irresponsible power of any existing corporations, or from
chartering new ones," else people would become "mere hewers of
wood and drawers of water to jobbers, banks, and stockbrokers");
See
Liggett Co. v. Lee, 288 U.S. 517, 565 (1933)
(Brandeis, J., dissenting) (explaining that "[t]hrough size,
corporations. . . have become an institution -- an institution
which has brought such concentration of economic power that
so-called private corporations are sometimes able to dominate
the state").
Richard L. Grossman and Frank T. Adams,
TAKING CARE OF BUSINESS:
CITIZENSHIP AND THE CHARTER OF INCORPORATION 7 (2002).
Richard L. Grossman and Frank T. Adams,
TAKING CARE OF BUSINESS:
CITIZENSHIP AND THE CHARTER OF INCORPORATION 6-9 (2002);
See Gregory A. Mark, THE PERSONIFICATION OF THE BUSINESS
CORPORATION IN AMERICAN LAW, 54 U. Chicago L. Rev. 1441 (1987).
See, e.g., People v. North River Sugar Ref.
Co., 24 N.E. 834, 835 (NY 1890) (explaining that the court
must determine whether a corporation has "exceeded or abused its
powers" and if so, whether "that excess or abuse threatens or
harms the public welfare"); Wilmington City Railway Co. v.
People's Railway Co., 47 A. 245, 248 (Del. Ch. 1900)
(proclaiming that the remedy of quo warranto extends back to
"time whereof the memory of man runneth not to the contrary").
All
fifty states, plus the District of Columbia, have retained
fragments of quo warranto laws. The authority over the creation
and dissolution of corporations has always been a legislative
power. See Thomas Linzey, Awakening a Sleeping Giant:
Creating a Quasi-Private Cause of Action for Revoking Corporate
Charters in Response to Environmental Violations, 13 PACE
ENVT'L L. REV. 219, 223 (1995). Contemporary attempts to
enforce portions of those laws, which at most offer a remedy
solely for the "misuse and abuse" of a corporate charter by a
single giant corporation, have been unsuccessful. See,
e.g., CELDF v. WMX, Technologies, et al., 1074 M.D.
1996 (Commonwealth Court of Pennsylvania 1997); and William
Wynn, ex. rel., v. Phillip Morris, Inc. et al., CV-98-03295
(Jefferson County, Alabama Circuit Court 1999).
See
St. Louis, I.M. & S Ry. Co. v. Paul, 173 U.S. 404
(1899) (declaring that corporations are "creations of state");
The Bank of Augusta v. Earle, 38 U.S. 519 (1839) (stating
that "corporations are municipal creations of states");
United States v. Morton Salt Co., 338 U.S. 632, 650
(1950) (explaining that corporations "are endowed with public
attributes. They have a collective impact upon society, from
which they derive the privilege as artificial entities");
Hale v.
Henkel, 201 U.S. 43, 75 (1906) (declaring that
"the corporation is a creature of the state. It is presumed to
be incorporated for the benefit of the public. . . . Its rights
to act as a corporation are only preserved to it so long as it
obeys the laws of its creation"); Chincleclamouche Lumber &
Broom Co. v. Commonwealth, 100 Pa. 438, 444 (Pa. 1881)
(stating that "the objects for which a corporation is created
are universally such as the government wishes to promote. They
are deemed beneficial to the country"); See also,
People v. North River Sugar Refining Company, 24 N.E. 834
(NY 1890) (declaring that "[t]he life of a corporation is,
indeed, less than that of the humblest citizen. . .");
F.E. Nugent Funeral Home v. Beamish, 173 A. 177 (Pa. 1934)
(declaring that "[c]orporations organized under a state's laws.
. . depend on it alone for power and authority"); People
v. Curtice, 117 P. 357 (Colo. 1911) (declaring that "[i]t is in
no sense a sovereign corporation, because it rests on the will
of the people of the entire state and continues only so long as
the people of the entire state desire it to continue");
State v. Walmsley, 162 So. 826 (La. 1935) (stating that
corporations are "mere creatures of the Legislature and are
entirely subject to the legislative will").
See
Virginia Bankshares v. Sandberg,
501 U.S. 1083 (1991);
Kamen v. Kember Fin. Servs., 500 U.S. 90 (1991);
Braswell v. United States, 487 U.S. 99 (1988);
Ball v. James, 451 U.S. 355 (1981);
Burks v. Lasker, 441 U.S. 471 (1979);
First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765 (1978);
Santa Fe Industries, Inc. v. Green, 430 U.S. 462 (1977);
Cort v. Ash, 422 U.S. 66 (1975);
United Steelworkers of America v. R.H. Bouligny, Inc., 382 U.S. 145 (1965);
Shapiro v. United States, 335 U.S. 1 (1948);
Coleman v. Miller, 307 U.S. 433 (1939);
Williams v. Baltimore, 289 U.S. 36 (1933);
Ferry v. Ramsey, 277 U.S. 88 (1928);
Essgee Co. of China v. United States, 262 U.S. 151 (1923);
Yazoo & M.V.R.Co. v. Clarksdale, 257 U.S. 10 (1921);
United States v. American Tobacco Co., 221 U.S. 106 (1911);
Wilson v. United States, 221 U.S. 361 (1911);
Chicago, B&Q.R.Co. v. McGuire, 219 U.S. 549 (1911);
Hale v. Henkel, 201 U.S. 43 (1906);
Wo
