Paul Cienfuegos’ October 27th, 2015 Commentary on KBOO Evening News
(His weekly commentaries are broadcast every Tuesday evening. You can view or listen to them all at PaulCienfuegos.com, CommunityRightsPDX.org/podcast, or subscribe via ITunes.)
Greetings! You are listening to the weekly commentary by yours truly, Paul Cienfuegos.
Today is the third week in a series of my commentaries that attempt to unveil the fascinating story and chronology of how the Supreme Court – over the past 196 years – has transformed the business corporation from an institution that was legally subordinate to The People, beginning after the American Revolution, into something having more constitutionally protected so-called “rights” than do you or I. Shall we proceed?
Beginning in the mid-1800’s, as the Industrial Revolution was beginning to pick up steam, local and state governments began to pass laws that banned certain corporate products from being manufactured or sold in their areas, because the public feared that these items were not safe, or unfairly interfered with or out-competed their existing local cottage industries. Corporations went to court to have these laws overturned, and beginning in the 1880’s, the Supreme Court agreed, ultimately tossing out hundreds of local and state laws as violations of the corporations “rights” under the Commerce Clause of the US Constitution. Corporate lawyers came to understand that any product or service that they could convince the court was an article of commerce could be protected constitutionally against local and state lawmakers who were simply attempting to protect the health and welfare of their residents and communities. Here are just two of hundreds of examples:
* In 1917, the Supreme Court threw out a Georgia law that required trains to slow down at certain railroad crossings, declaring the law to be a direct burden on interstate commerce.
* In 1978, Nebraska passed a law establishing stringent conditions on the transfer and sale of its groundwater outside the state. Three years later, the Supreme Court declared that water was an article of commerce, and overturned the Nebraska law.
Even nuclear waste is now considered an article of commerce, thus prohibiting the state of Nevada from opposing any more nuclear waste being stored there. You can’t make this stuff up!
The business corporation’s impressive use of the Commerce Clause to protect its rights to manufacture or sell or transport virtually anything across state boundaries is the origin point for the global trade treaties of today. NAFTA, GATT, the WTO, and the upcoming Trans-Pacific so-called Partnership are all examples of unelected international trade tribunals having the legal authority to overrule national government law-making that was trying to protect its citizens from corporate harm. You can draw a direct line straight back into the past showing clearly that the corporation’s use of the Commerce Clause in the late 1800’s, granted to them by our Supreme Court, is where this crazy idea began.
In what began as a simple property tax dispute in California, the case Santa Clara County v. Southern Pacific Railroad was heard by the Supreme Court in 1886. Ultimately, the railroad corporation won the constitutional rights of a person, gaining legal access for the first time in US history to the word “person” in the 14th Amendment, which had of course been written not to protect corporate “rights” but to guarantee equal protection and due process to freed male slaves. Once corporations won personhood rights, their attorneys worked diligently to expand those rights wherever the word “person” appeared in the other amendments to the Constitution.
For example, just seven years later, in 1893, in the case Noble v. Union River Logging, the court granted corporations access to the 5th Amendment’s right to due process. The case involved a logging company that had its right-of-way rescinded across public lands by the Interior Department. The company’s lawyers argued that this revocation violated their 5th Amendment right to due process. The Supreme Court agreed, and for the first time corporations gained Bill of Rights protections.
In 1905, in the case Lochner v. New York, the court began to invalidate hundreds of economic rules that had existed to regulate corporate behavior, under the Due Process clause of the 14th Amendment.
Just one year later, in 1906, corporations won 4th Amendment “search and seizure” protection in the case Hale v. Henkel. The case involved tobacco companies that were refusing to turn over selected documents to a grand jury. The court sided with the companies. One Supreme Court justice dissented, stating, “…the power of the government, by its representatives, to look into the books, records and papers of a corporation of its own creation, to ascertain whether that corporation has obeyed or is defying the law, will be greatly curtailed, if not destroyed.”
In 1908, in the case Armour Packing v. United States, the court extended to corporations the 6th Amendment right to a jury trial in a criminal case.
I’ve been sharing with you an unveiling of the fascinating chronology of how the US Supreme Court – over the past 196 years – has transformed the business corporation from an institution that was legally subordinate to The People, beginning after the American Revolution, into something having more constitutionally protected so-called “rights” than do you or I. We’ll be continuing with this timeline for another few weeks.
You’ve been listening to the weekly commentary by yours truly, Paul Cienfuegos. You can hear future commentaries every Tuesday on the KBOO Evening News in Portland, Oregon, and on a growing number of other radio stations. I welcome your feedback.
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