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The First Stone: The Constitution Hijacked

Local acts against corporate legal power
Thomas Linzey believes that corporations use—and abuse—the Constitution to usurp the right of the people to govern themselves democratically. But Linzey is not interested in promoting corporate responsibility, corporate accountability, corporate ethics or corporate codes of conduct. The 35-year-old lawyer, who heads the Community Environmental Legal Defense Fund of Chambersburg, Pennsylvania, provides local governments with model legal briefs they can use to fight corporate power.

Linzey has helped 10 Pennsylvania communities enact "The Family Farm Protection Ordinance." This ordinance prohibits corporations from owning or controlling farms, and thereby keeps factory farms out of communities. He has also helped 58 communities pass ordinances that curtail the application of sewage sludge as fertilizer by requiring sludge corporations to pay for the testing of each load of sludge they want to dump.

Most recently, Linzey and Richard Grossman, of the Program on Corporations Law and Democracy, have written a model brief that directly confronts corporate power. Their "Corporate Rights Elimination Ordinance" helps citizens strip corporations of their constitutional privileges at the municipal level. In the summary of the ordinance, they write:
Courts have illegitimately bestowed upon corporations immense constitutional powers. ... 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. ... Accordingly, the constitutional claims asserted by the [x corporation] against the [y government] must be dismissed because those claims deny the people's rights to life and liberty, and their fundamental right to self-governance.

So far two townships in Pennsylvania have passed this ordinance in an effort to inoculate themselves from corporations that might go to court to overturn local statutes that curtail the land-based application of sewage sludge as fertilizer. Two other Pennsylvania townships are preparing to pass it.

"The ordinances grew from a real and practical need—the necessity of protecting self-government from federally conferred 'corporate rights,' " says Linzey. "The ordinances are defensive ordinances, which will be used if sludge and factory farm corporations sue to overturn the underlying, substantive factory farm and sludge ordinances. In that context, the local government would assert that the corporations have no right to assert constitutional rights to overturn local law. That scenario establishes the right dynamic that can then be taken on appeal through the appellate courts, eventually ending up at the Supreme Court."

Corporations in Pennsylvania responded to Linzey's ordinances by getting the Pennsylvania legislature to pass an anti-democratic law that stripped municipal governments of their power to pass local ordinances. In response to that direct attack on local control, a broad-based, statewide coalition emerged built around democratic ideals. In that way the single-issue battles against sludge and factory farms were transformed into a movement for democratic control over corporations. The people were heard and Governor Ed Rendell vetoed the pro-corporate legislation.

Community Environmental Legal Defense Fund is working to export this model of anti-corporate organizing around the country by sponsoring weekend Democracy Schools ( http://www.celdf.org).

Education is sorely needed. Few people realize that the Constitution grants bloodless corporate entities some of the same constitutional rights as human beings. Of particular note is the landmark case that granted corporations rights under the 14th Amendment. That amendment, which states "no state shall deprive any person of life, liberty or property, without due process of law," was adopted during Reconstruction to protect recently emancipated slaves in a hostile South. But in Santa Clara County v. Southern Pacific Railroad (1886), the Court, invoking the 14th Amendment, defined corporations as "persons" and ruled that California could not tax corporations (i.e. deprive them of property) differently than individuals. By extension it followed that corporations, as legal "persons," had First Amendment rights as well.

Using this definition of corporations as persons, the High Court proceeded to strike down a range of state regulations. In 1938, Justice Hugo Black noted that in the 50 years after Santa Clara, "less than one-half of 1 percent [of Supreme Court rulings that cited the 14th Amenement] invoked it in protection of the Negro race, and more than 50 percent asked that its benefits be extended to corporations." Subsequent Supreme Court decisions redefined the due process clause of the 14th Amendment and permitted governments to regulate corporations. Corporations, however, managed to retain the First Amendment rights of personhood granted in Santa Clara.

Yet corporations are different from us mortals. They feel no pain. They can live for centuries. They do not need clean air to breathe, potable water to drink or healthy food to eat. Their only reason for being is to grow richer, bigger and more powerful.

So instead of treating these institutional constructions as if they were flesh and blood, the political and legal systems should acknowledge the fact that corporations are merely one way that people organize themselves to do business. They are not "endowed by the creator with unalienable rights" but rather are human-made creations that can just as easily be unmade when they cease to serve a worthwhile public function.

"A sustained movement, anchored in local governments across the country challenging corporate constitutional rights through hundreds of different single issues areas is the key to eventually changing the law," says Linzey. "It's not enough to simply register dissent or play within the rules that have been written precisely to divert our energies elsewhere. It is time to withdraw our consent from the actions being taken by the federal government in our names. Only then will it be revealed that a democracy cannot function when corporations have hijacked what our forebears fought, bled and died for in the Revolution."