This is an original speech presented by Community Rights US’ Founding Director Paul Cienfuegos, in the small town of Decorah, Iowa, on September 26, 2013, sponsored by the Community Rights Alliance of Winneshiek County. An edited version of Paul’s speech was later nationally broadcast via David Barsamian’s ‘Alternative Radio’ show.
I wish to thank the Community Rights Alliance of Winneshiek County, which was formed earlier this year, for bringing me to Decorah for tonight’s speech and this weekend’s workshop. Thank you for your substantial efforts.
Also, thanks to Michael Patrick Downes, who drove all the way from Chicago today to record my talk.
And finally, thanks to David Barsamian’s nationally syndicated show Alternative Radio, which will be broadcasting my talk to a national audience later this year, which by the way includes your local KPVL station that now plays the Alternative Radio show every week!
I would like to begin my talk tonight with a quote from Wendell Berry, a life-long farmer and prolific author who has written dozens of books about his unshakeable connection to the land, rural communities, and meaningful work:
“The idea of citizenship in the United States seems to me to have been greatly oversimplified. It has become permissible to assume that ALL one needs to do to become a good citizen…. is to vote…. and obey…. and pay taxes,…. as if one can be a good citizen without being a citizen either of a community ….or of a place.”
So what does it mean to be a good citizen in the local place that you live? My colleagues and I in the Community Rights movement have come to believe quite firmly that if you can’t practice real democracy in the local place that you live, then we really can’t honestly claim that we live in a democratic society at all.
Think about it. Everyone lives somewhere. They don’t live in a country or in a state. They live in a very particular spot on the landscape. Their day to day activities take place in that spot on the landscape – in a city or a town or a rural area.
So we need to ask ourselves a fundamental question about that spot where each of us lives. Do you have any real direct authority as a citizen there in that place? Because if you do not, you’ve got a problem! And we’ve all got a problem!
If the board of directors of a large corporation announces their plan to build a factory farm in your rural county, do the majority of the people or a majority of the elected officials in your community get to decide Yay or Nay? When walmart corporation’s directors decide to build yet another store in your community, does the public or its elected officials get to decide whether this will be allowed or not? When the federal government announces it’s going to build a new superhighway that skirts the edge of your community, do you or your elected officials have a say in whether that happens or not?
When nestle corporation’s directors announce they’re building a new water bottling plant in your community, do you get to vote on it first, especially given that water is becoming the new oil, with water that is safe to drink becoming more and more scarce? When your state government gives a fracking corporation a permit to start drilling for natural gas at the edge of your town, does your community have the authority to veto the drilling plan before it even starts? And when the fracking operations that are going on all over the United States, require an endless supply of a very special and unusual kind of sand – frac sand – as is currently being proposed here in Iowa and nearby states – who gets to decide whether your local hills are going to be blown apart to get at that sand and then transported a thousand miles away – the folks who live here in rural Iowa, or the directors of those large corporations who couldn’t care less about the people who live here?
These are just a few examples of what I mean when I ask you whether real democracy exists in your town, in your county. Do the majority of the residents, or a majority of your elected officials, get to have a meaningful say as to whether or not these proposed activities happen in your community or not? Because if they don’t, then we can’t reasonably claim that our society operates democratically.
Now we can change this! It doesn’t have to be this way!
The work that I do as a full-time community organizer and teacher is about helping communities to rethink what is the proper relationship between We the People and our governmental institutions. As my colleague Kai Huschke says, “It’s about re-engineering what government is about – what government is for.” Because if what is normal in our society is you and I having virtually no democratic authority over the decisions that affect all of us, then it’s time to do something different then what we’re used to doing as citizens. And that’s the work of the Community Rights movement that I am active with. We’re about driving into law new rights of self-governance for communities. Things only change with pressure from below. So that’s where we’re doing most of our work. In fact, 160 communities in nine states have already done just that over the past thirteen years – they’ve passed local laws that enshrine local law-making authority and that stop corporate harms before they even happen.
Now some will say – “But communities already have a say. That’s what the regulatory process is all about.” … That before a factory farm, or a big box store, or a water bottling plant is built, that the company has to get a permit from the state to build it, and before that can happen the Department of Agriculture, or the Water Resources Board, or the state energy agency, is required to hold a public hearing so that you can speak your mind. That this proves that the society is operating democratically.
I would argue that just the reverse is true. That in each of these examples, the state or federal agency that holds the public hearing does so only because it has to. And that it’s a foregone conclusion that the project will be approved, even before the public hearing takes place. Why? Because that’s how the law works. We the People aren’t supposed to know this. It’s supposed to be too complicated for dumbies like us to understand. But here’s what true: State and federal regulatory agencies rarely deny a permit to a factory farm or a big box store or a water bottling plant or a proposed clear-cut logging operation or an oil lease or a toxic waste incinerator or a coal fired power plant or a frac sand mining operation, …. as long as the proposed activity meets all of the current regulatory requirements. And given that regulatory laws are generally written by the industries which are going to be regulated, the permit is almost always approved. This is how the system operates. It was designed this way.
These regulatory agencies were a brilliant invention in the late 1880’s. The federal government and the leading corporate executives of the time – from the railroad industry – met together to create a new body of law called “regulatory law”. The first regulatory agency was the ICC, or Interstate Commerce Commission, established in 1887. Wrote Charles Adams, President of the Union Pacific Railroad Co, “What is desired is something having a good sound, but quite harmless, which will impress the popular mind with the idea that a great deal is being done, when, in reality, very little is intended to be done.” What were the regulatory agencies actually designed to accomplish? President Cleveland’s Attorney General, Richard Olney, explained to railroad corporation executives that the ICC was to be “a sort of barrier between the railroad corporations and the people…” The public was to be pacified with laws that sounded tough but placed much discretion in the hands of regulators. And who was put in charge of the regulatory agencies? High-level staff from the very industry that was to be regulated. And who was to write the actual regulations? The same high level staff from the very industry that was being regulated! So in other words, We the People get to enforce the rules that industry wrote for themselves!
So that’s the regulatory process that we are funneled into when we share our concerns about plans that corporations have for our communities. Not exactly a process that engenders democratic participation.
Once you know this history, it starts making a heck of a lot more sense why this alphabet soup of state and federal government agencies almost always approve the corporate development they’ve been asked to approve. So when I hear concerned citizens complain that the US Department of Agriculture has been captured by the agricultural industry, or that the Department of Energy has been captured by the coal and oil industry, or that the Department of Forestry has been captured by the logging industry, I have to both laugh and cry. Because you see, none of these industries had to capture these agencies. They already run them, and they always have! A monsanto corporation executive runs the USDA, and so on. This is how the system works. It was designed to work this way. So let’s stop being surprised whenever an agency approves the latest frac sand mining operation, or the latest cell tower, or the latest (whatever!). It’s not ours to decide. We have virtually no control at all over what happens in our own communities. We just have to grin and bear it.
But there’s more. It gets worse. Not only is there just one avenue for citizen input – the regulatory law system – when a corporation comes to town with a plan that local residents don’t like. But if our local elected officials try to bypass this system, and attempt to pass a local law that prohibits the proposed corporate activity, they get slapped by state government. Why? Because it’s actually illegal for them to do so. How can that be?
Because more than a century ago, a judge named John Forrest Dillon – who served on the Iowa Supreme Court from 1862 to 1869 – came up with a theory about state governments having complete authority over local governments. The theory came to be known as Dillon’s Rule in an 1868 court case where he stated, “Municipal corporations – [that means municipal GOVERNMENTS] – owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so may it destroy. If it may destroy, it may abridge and control.” In other words, and again I quote, “[M]unicipal governments only have the powers that are expressly granted to them by the state legislature.”
Dillon referred to municipalities as “mere tenants … of their respective state legislatures” which could be “eliminated by the legislature with a stroke of the pen.”
The US Supreme Court fully adopted Dillon’s theory in an 1891 court case, in Merrill v. Monticello. So much for the notion that “All power is inherent in the people”, or that local self-government is a matter of natural right that does not need to be conferred by higher political structures, as many state constitutions either imply, or state explicitly.
So you see, it doesn’t actually matter what kind of ideas the local residents may have about the sort of community they wish to live in. We can pull together all of the public processes we want. We can work hard to ensure that the residents of our community get to contribute their best thinking so that an official 20-year or even 50-year plan gets written down and passed by your elected officials, describing in great detail the kind of town or city or environmental protection you have decided to leave for your children and grandchildren. Because ultimately, the state government can treat your municipality as a mere child that it can overrule with a stroke of the pen.
As I said earlier, we in the Community Rights movement believe that if we can’t practice real democracy in the local place that we live, we really can’t honestly claim that we live in a democratic society at all. … So we’re out to change that!
Here’s a related quote from Alexis de Tocqueville, a 19th century historian best known for his book, Democracy in America:
Without power and independence, a town may contain good subjects but it can contain no active citizens.
And so we start from the premise that we in fact do not live in a democratic republic, even though we were all taught in school that we do, because we are currently not allowed to practice real democracy in the places that we live.
Allow me to share a bit more early American history with you that you may not know. Everything I am about to tell you is verifiable. None of it is conspiracy theory – I promise!
This country has had two national constitutions, not just one. The drafting of our first constitution was completed in 1777, and was ratified by all thirteen states in 1781, and was intended as our long-term constitution, but it was illegally thrown out and replaced by our second constitution – the one we have now – in 1789, just twelve years after it had gone into effect.
Our original constitution was titled The Articles of Confederation and Perpetual Union. It was a profoundly more democratic document than our second constitution. The people of the thirteen colonies had not fought in the Revolutionary War against the British monarchs and their empire simply to turn around and create yet another empire that oppresses most of its inhabitants. The vast majority of people in the thirteen colonies wanted something very different – they wanted local control over their lives. They wanted some guarantee of liberty and justice for all, regardless of rank or status. With this goal in mind, they wrote a very different constitution than the one we have now. It was a revolutionary constitution. All power was decentralized. The people would have significant self-governing authority in their own communities. State government would be primary, while federal government would exist mainly to facilitate discussion and coordination between the states.
To make this a reality, federal government had few of the powers it has today. There were no permanent courts. There was no Supreme Court that could overrule the will of the people or its representatives. There was no US Senate, which today is equivalent to Britain’s House of Lords – in other words a millionaire’s club. There was only the “the Congress of the Confederation” – the place that the representatives from each state gathered to discuss issues of national significance. The Congress of the Confederation could make decisions, but the implementation of those decisions, including modifications to the constitutional document itself, required unanimous approval of all thirteen state legislatures.
There was no standing army, nor could the national government establish one. Only the states had the authority to create militias to respond to specific threats to their security, and these militias were only temporary. Nine of the thirteen states had to agree before the Confederation could engage in a war. And finally, there was no Executive Branch – no single person could rule over everyone else.
Quoting from the document itself, “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated.”
We were all taught in school that the brilliance of our republic is the checks and balances between the executive branch, the legislative branch, and the judicial branch. And yet our first constitution – which was much more democratic than our current constitution – provided only one of these branches – the Congress. Is it possible that even the checks and balances that we were taught about in school have a very different purpose than what we were told? Is it possible that instead, these separate elements of government were designed to make it supremely difficult for We the People to pass laws that we favored, because the Senate or the Executive or the Supreme Court could ultimately veto the majority’s desires?
The wealthiest and most influential members of this early society did not favor such a decentralized form of government, where the individual states held the primary political power. They in fact did wish to build a new empire, but with themselves in the lead. So they began to actively work towards getting rid of the Articles of Confederation and Perpetual Union, and replacing it with something that flipped the government upside down, with a strong federal government that ruled over the states.
Here’s a description of what took place, in the words of Richard Henry Lee, writing in The Federal Farmer:
“The idea of destroying ultimately, the state government, and forming one consolidated system, could not have been admitted – a convention, therefore, merely for vesting in congress power to regulate trade was proposed . . . September 1786, a few men from the middle states met at Annapolis, and hastily proposed a convention to be held in May, 1787, for the purpose, generally, of amending the confederation . . . still not a word was said about destroying the old constitution, and making a new one…The States still unsuspecting, and not aware that they were passing the Rubicon, appointed members to the new convention, for the sole and express purpose of revising and amending the confederation – and, probably, not one man in ten thousand in the United States, till within these ten or twelve days, had an idea that the old ship was to be destroyed…”
Now, for the first time in our nation’s history, thirteen years after the nation was founded, we would have our first president, George Washington. Now, state and federal courts would be established, along with the Supreme Court, which could overrule the people’s laws. Now, a second branch of the legislature – the Senate – would be established. Now, state authority would be trumped by federal authority.
And they call this democracy?!
When the people living in the thirteen states found out what had been done in Philadelphia behind locked doors, the response in almost every state was pure outrage. Here’s just one example from the historical record. Amos Singletary, a local farmer, is recorded as having made the following statement in Sutton, Massachusetts:
These lawyers, and men of learning, and moneyed men, that talk so finely, and gloss over matters so smoothly, to make us, poor illiterate people, swallow down the pill, expect to get into Congress themselves; they expect to be the managers of this Constitution, and get all the power and all the money into their own hands, then they will swallow up all us little folks, like the great leviathan.
The states ultimately refused to ratify the new constitution because it spoke only of the rights of property and commerce. Nowhere in the second constitution was there mention of rights for people. So those who had written it were forced to promise that a series of amendments would be added later that guaranteed certain rights to all people, and this promise was sufficient to get the states to finally ratify it. We call the first ten amendments of our second constitution The Bill of Rights. Most of us think these amendments were all part and parcel of the original document, because we have a flattened understanding of our own history.
The official myth of our nation’s founding is about liberty and justice for all. Sadly, this was never intended to exist in reality, at least not after our second constitution was drafted.
James Madison was the primary architect of our second constitution. He spoke quite explicitly at the Constitutional Convention in Philadelphia about his vision for government. Here’s one of the things he said: The primary goal of government is “to protect the minority of the opulent against the majority.”
I’ll read that again, because it’s critical for us to understand why our system of government operates the way it does.
James Madison, the primary architect of our second constitution, stated at the Constitutional Convention in Philadelphia, that the primary goal of government is “to protect the minority of the opulent against the majority.” And his colleague John Jay was fond of saying, “The people who own the country ought to govern it.”
So it’s no surprise that our second Constitution – the one that we now live under – is all about property and commerce, and almost entirely not about the rights of people. Because the folks who wrote it were really most interested in designing a nation-state where those with the most property got to rule and those with little or no property – which has always been the vast majority of us – that those people got a system of laws that looked democratic on the surface, but which actually excluded most of us from getting to fully participate, other than by merely giving input to those in charge. So we ended up with a constitution that’s all about the rights of property and says almost nothing about the rights of people. This was the vision of James Madison and George Washington. And the only reason that we even have a Bill of Rights is that the public didn’t like the second constitution at all, and demanded that there be amendments added that were explicitly about rights.
And by the way, I’m not asking you to believe my history lesson. If you’re at all skeptical, check it out. Do your own research.
Let’s return for a few minutes to the American Revolution, and for this I’m going to quote substantially from my colleague Ben Price, the Projects Director at the Community Environmental Legal Defense Fund, a group that I work with very actively.
The American Revolution was primarily about local self-government. Revolutionary colonists were adamantly opposed to what they referred to as a “ministerial” form of government, where all decisions affecting their communities were made in advance by the central government. Those local leaders appointed by their British superiors were only given the authority to administer the laws set forth from above, and no authority to make their own. This procedural denial of rights was unacceptable to the colonists, so they began to write local “declarations of independence” to prepare for separation from the king. Historian Pauline Maier has documented over ninety Declarations of Independence issued by community governments throughout the colonies in the Spring and Summer of 1776. It was these expressions of frustration with the central government, and their complaints that necessary laws were being preempted by the servants of the empire, that inspired Thomas Jefferson’s more famous Declaration of Independence in 1776. There’s much more to learn about this story in Pauline Maier’s book, American Scripture: Making the Declaration of Independence.
Most of us haven’t read the Declaration of Independence since we were kids. It’s quite a remarkable document and I urge you to have another look. The Declaration includes a long list of reasons why the colonists no longer owed allegiance to the British Empire. The first complaint against the king was this: “He has refused his assent to laws, the most wholesome and necessary for the public good.”
Still quoting from Ben Price….
They were not referring to state laws – there were no “states” yet. They were not referring to national laws – there was no nation yet. What they meant was that the empire was nullifying or “preempting” local community laws enacted by direct representatives of the people in the Town Meetings, County and Provincial Assemblies and other community governing bodies throughout the colonies.
Local self-government has been under attack throughout our country’s history. In 1907, professor of Political Science James Allen Smith, published an extraordinary book titled, “The Spirit of American Government”. Here’s a short excerpt about local self-government:
These restrictions upon the powers of cities indicate a fear that too much local self-government might jeopardize the interests of the propertied classes. This attitude on the part of those who have framed and interpreted our state constitutions is merely an expression of that distrust of majority rule, which is, as we have seen, the distinguishing feature of the American system of government. It is in the cities that the non-possessing classes are numerically strongest and the inequality in the distribution of wealth most pronounced. This largely explains the reluctance of the state to allow cities a free hand in the management of local affairs. A municipal government responsive to public opinion might be too much inclined to make the public interests a pretext for disregarding property rights. State control of cities, then, may be regarded as a means of protecting the local minority against the local majority. Every attempt to reform this system must encounter the opposition of the property-owning class, which is one of the chief reasons why all efforts to establish municipal self-government have thus far largely failed.
Little has changed between 1907, when the professor wrote his book, and the present day. The self-governing rights of local communities across this country that are trying – within their municipal governments – to exercise the self-governing authority that they thought they had – continue to be thwarted. It’s not much better at the state level regarding direct democracy either.
Twenty-seven states allow their citizens to exercise direct democracy, where people can gather sufficient signatures to propose specific laws directly to the voters. It’s referred to as initiative and referendum, and it didn’t come easily. Massive social movements had to be built across this country in the late 1800’s to win this right for We the People. In most states, the state legislatures fought it tooth and nail. They didn’t want to have to share governing authority directly with the citizenry.
Yet even in those twenty-seven states with initiative and referendum authority, when citizens organize to improve the health and welfare of their home places, those in positions of power make their work very very difficult.
We don’t live in a society where it’s normal for local governments to pass legally-enforceable laws to protect the health and welfare of their communities. In fact, it’s illegal. There are two structures of law that make it illegal. One is called Dillon’s Rule that I’ve already discussed. The other structure of law is called state preemption, that prohibits local governments from passing laws that ban activities that the state would consider normal and legal – like fracking, and factory farms, and clear-cut logging.
For example, in the state of Oregon where I live, one county after another is currently attempting to pass ballot initiatives that would ban all planting of genetically modified seeds or crops. Our state legislature came very close earlier in 2013 in passing a law that would prohibit county governments from banning genetically modified crops. And on September 30 of this year, the state legislature is going to make a second attempt to prohibit local decision-making authority on this topic. From the state’s perspective GMO agriculture is already regulated, which by their definition means it is considered safe, so it cannot be banned. So it doesn’t matter if a majority of the local community has a different opinion about its safety.
In the state of Georgia, many small rural communities still do not have adequate internet service. In response, local governments had begun to provide municipally-owned internet service. What has been the response from the Georgia legislature? They passed a law that prohibits municipal governments from providing any publicly owned internet service.
In the state of Pennsylvania, many communities have passed bans on corporate fracking and corporate factory farms. In response, the Pennsylvania legislature has passed laws that prohibit local governments from passing such laws. In 2008, then Pennsylvania Attorney General and now governor Thomas Corbett argued before the courts, “There is no inalienable right to local self-government.”
Excuse me?!?!
He’s actually correct. There is no right currently in law that protects a community’s right of local self-government! The problem is, most Americans think that We the People do possess that right. We were taught in civics class that we are the Sovereign People. So it makes most of us pretty darn mad when our own elected officials tell us this! And most of us who learn this uncomfortable fact don’t tend to take it sitting down. They get active! Because they can’t believe it could really be true.
A statement like this is especially interesting coming from Pennsylvania, because this state was the only state that produced, in 1776, a truly revolutionary state constitution. It contained a strong Declaration of Rights. It had a single Assembly, chosen by the people and directly responsible to them. All males could vote, including those who didn’t own property. Instead of a governor, there was a 12-man executive council directly elected by the people. Wealthy merchants from Philadelphia opposed the constitution, and relentlessly tried to overturn it. In 1790, the state legislature successfully but illegally overturned the existing constitution and immediately moved to gut many of its democratic features.
What is most remarkable about the governor’s claim is that it’s a frontal assault against the Pennsylvania Constitution’s own words. Given that Corbett had been the lead attorney in state government before becoming governor, you should have a pretty good idea as to how much he cares about the guarantees in the Pennsylvania State Constitution. Here’s Article 1, Section 2, and I quote,
All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety and happiness. For the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may think proper.
And by the way, most state constitutions contain similar language. Since I am speaking today in Iowa, here is the equivalent section of the Iowa State Constitution:
All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right, at all times, to alter or reform the same, whenever the public good may require it.
And just for good measure, let me also share with you one other state constitution. Here are some brief excerpts from the New Hampshire Constitution’s Bill of Rights, which contains some unusual extra language that sets it apart from other state constitutions:
Article 1. All men are born equally free and independent; therefore, all government of right originates from the people, is founded in consent, and instituted for the general good.
Article 7. The people of this state have the sole and exclusive right of governing themselves as a free, sovereign, and independent state;
Article 10. RIGHT OF REVOLUTION. …. Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.
I’m sharing this text with you simply to remind you that our nation was born of revolution. Those who came before us rose up against enormous odds. And this language in our state constitutions is one of the only places where you can still catch a glimpse of our early revolutionary history.
But getting back to Pennsylvania, why did Thomas Corbett, now the governor of Pennsylvania, say such an odd thing? Why did he say, “There is no inalienable right to local self-government.”?
The fact is that these powerful words in the state constitution are now completely ignored by those in power, in every state in the union. And they will continue to be ignored until We the People remember who We are! In Pennsylvania, the residents have been discovering that they actually don’t have very much political power or authority at all. And neither do the people of Georgia or Oregon or any other state for that matter. Their power has been usurped. A whole structure of law has been built over the past 200 hundred years that in effect overrules what the majority wants.
Again, we in the Community Rights movement have a different idea altogether about what should be allowed and what should not. We think that it’s what corporations are allowed to do legally that is the real problem here. And that when We the People don’t challenge the laws that violate our rights, we end up validating those laws with our silence! So we’re all about directly confronting unjust laws, just like our ancestors did once upon a time during the American Revolution.
I’ve described Dillon’s Rule, which allows state governments to treat municipal governments and their residents as mere tenants of the state. I’ve described regulatory law and the regulatory agencies, which tie We the People into knots, making us completely powerless, when we’re trying to object to corporate activities that are being planned for our communities. And I’ve described State Preemption, which prohibits our communities from banning corporate activities that are considered normal and legal under state law.
The third and final example of a structure of law that neuters our self-governing authority as We the People – which we are also taking on in our work for Community Rights – is the rise of corporate constitutional so-called “rights” which have overpowered our constitutional rights. Allow me to elaborate briefly, and then I’ll share some much more hopeful news with you about our work and what you can do to get involved and to make a difference.
The boards of directors of large corporations have spent most of the past two hundred years winning one Supreme Court case after another, embedding into our laws one new corporate constitutional so-called “right” after another. Since 1819. That’s 194 years and counting, that corporations have been expanding their legal and political and economic power in our country. The bicentennial of the birth of corporate constitutional so-called “rights” is just six years away – in 2019.
Corporations now claim a whole set of rights originating in the amendments to the constitution – all of which are linked to the rights of persons – in other words corporate personhood rights. They include First Amendment free speech rights, Fourth Amendment rights against search and seizure, Fifth Amendment rights against takings and due process, Seventh Amendment rights to a jury trial, and Fourteenth Amendment equal protection and due process rights. If we don’t start to pay a lot more attention soon to the constant expansion of corporate rights, it’s just a matter of time before corporate lawyers argue that corporations should be allowed to vote in our elections, or to establish their own militias. We’re already heading in that direction.
Here’s a test question for you:
What can you do when a corporation violates your free speech rights, or your property rights, or your privacy rights?
The answer might surprise you! There’s actually nothing you can do, at least within conventional law! You know why? Because the Bill of Rights only protects you when the government violates your rights. It offers you absolutely no protection when a corporation violates your rights. And given that corporations have become the dominant institution of our society and our world, that’s a pretty darn scary situation.
In addition, corporations claim rights directly from the constitution itself. The US Supreme Court has found corporate rights in the Commerce Clause, and the Contracts Clause, and the Diversity Clause. I say that the court has found corporate rights in those sections of the constitution, because the word “corporation” doesn’t exist anywhere in the Constitution. So this is an outstanding example of what we call judge-made law. And judges are not supposed to make new law.
Here’s a recent example of corporate “rights” overpowering our rights here in Iowa:
The state of Iowa has a law that was written in 1975 that is designed to keep large corporate meat packers from controlling livestock farming, a practice known as vertical integration. The law was originally written “in order to preserve free and private enterprise, prevent monopoly, and protect consumers.”
Unfortunately, Iowa’s law has run afoul of corporate constitutional “rights” repeatedly and is no longer being enforced for this reason. Texas farm corporation, a Texas-based hog company, was the latest company to sue the state in April 2013. Previously, Iowa has been sued by smithfield foods, cargill, hormel foods, tyson fresh meats, and other meat companies. What was the legal claim that all of these corporations used against the state? They all alleged that the state’s law violated the Commerce Clause of the US Constitution. The clause has been interpreted by the courts to mean that states may not pass laws that discriminate against out-of-state businesses in favor of those in the state. In response to each of these cases, the state has agreed to not enforce its own law! This is what happens when We the People allow corporations to claim constitutional “rights”. It’s not a pretty picture.
What do you say we decide here and now that we will declare 2019 – which is the bicentennial of corporate “rights”, as THE YEAR THAT CORPORATE “RIGHTS” ARE ENDED IN THIS COUNTRY. ….. ENOUGH IS ENOUGH! … WHAT DO YOU SAY? …. ARE YOU WITH ME?….
Let’s not forget: a corporation is just property, shares of which are owned by human beings. It’s referred to in the law as a legal fiction, because it doesn’t actually exist in the material world. It’s merely a business structure. Giving rights to a corporation is like giving rights to the number six. It’s absurd! We don’t give free speech rights to houses. We don’t give property rights to chairs. We don’t because it’s silly. Yet we have allowed our courts to give all sorts of constitutional “rights” to business structures called corporations.
But that’s not all. It gets more absurd. Our corporate accountability movements and corporate social responsibility movements then attempt to hold the “it” accountable, which is ridiculous if you really think about it.
When your toaster stops working, do you try to hold it accountable? Do you march up and down in front of it, shouting slogans at it? Do you negotiate with it? Do you plead with it? No, of course not. It’s simply a tool – it toasts your bread. When it stops working, you understand that it is you who need to be responsible for fixing it, or replacing it. Corporations are supposed to be our tools – the tools of a Sovereign People. When they stop doing the job they were designed to do, it is we who are responsible for setting things right. It is we who must hold their directors accountable. And believe it or not, that’s how it once was after the American Revolution, when it was understood by both politicians and the general public that a corporation was a legally subordinate entity that existed to serve the public good and to cause no harm.
I have said for years that we need to de-personify the corporate “it”, and personify the actual decision-makers hiding behind the corporate veil.
Think about the Wizard of Oz with me for a moment. We see an image of the great Oz on a projection screen. His voice bellows. Dorothy and her friends tremble with fear in front of his image. Toto the little dog runs to a curtain on the side of the room, and pulls it open to expose a small man pulling levers and speaking into a microphone. This is actually a perfect symbol of what I’m describing.
We have all been trained to see large corporations as these tremendously powerful forces that can push us aside and do whatever they want to do in our communities. As long as we believe that they are this powerful, then in fact they ARE this powerful. But in reality, they are merely illusions of power. Like the great Oz, they don’t exist in reality at all. They are merely business structures, with decision-makers hiding behind curtains, making demands upon us. So why do we act so powerless in their presence?
Imagine if we responded not to their image on the screen, but instead to the actual human beings who are hiding from us – the ones who are pulling the levers. It is they who we must hold personally accountable when the corporate “it” causes serious harms to our communities. For they are the ones who made the actual decisions that caused the actual harms in the places that we live.
Did you know that it wasn’t until 1919 that corporations were required to maximize returns to their shareholders? That was just another court decision. Before then, corporate directors had much more freedom to decide what to do with the profits they made.
Even liability protections are something new. After the American Revolution, corporate directors and shareholders were held personally liable for all harms and debts caused by the corporation.
So you see, we can’t even assume that we even know what a corporation is. Because what it is is defined by those in state government who bring corporations into existence in the first place. Historically, corporations were created one at a time by state legislatures, and their directors and stockholders had to abide by a whole litany of requirements and prohibitions.
Imagine what would have happened after the BP oil spill in the Gulf of Mexico, if our nation’s early corporate chartering laws would have still been in place. I can tell you what would have happened! BP’s directors would have never decided to drill in such deep water in the first place, nor would the stockholders have allowed such risky corporate behavior, because all of these players would have known that they might end up in jail if something went wrong. Or their personal assets might be seized. Or the corporation itself could have been dissolved through a charter revocation action by the government. Instead, because corporations are now packed to the gills with constitutional so-called “rights”, all we can do is beg and plead with their liability-protected directors to try to cause a little less harm the next time. And that’s no way to run a society that’s supposed to be based on a revolutionary truth, that all power is inherent in The People. We have drifted a long way from that reality.
That’s why I said earlier that we must learn to de-personify the corporate “it”, and personify the actual decision-makers hiding behind the corporate veil. For when we do this, we start to find it strange that a corporate “it” should have more rights than We do. We start to question the validity of legal structures that have been placed as barriers in front of us – legal structures like corporate constitutional so-called “rights”, and state preemption laws that prohibit us from protecting our own communities from harm, and Dillon’s rule, that treats We the People as children, and regulatory laws that are designed to ignore our opposition to destructive corporate activities.
It’s not going to be enough if we simply work harder to elect good people to government. The problem is much more serious than that. So we need to stop focusing on candidates and instead focus on the actual structures of law that create this reality in the first place. … And I am convinced that the local democracy work that is already happening in 160 communities in nine states – including right here in Winneshiek County, Iowa – is THE … MOST … POWERFUL … RESPONSE that I PERSONALLY have EVER seen, in my 37 years as a grassroots community organizer.
As James Madison said so clearly, the primary purpose of government is to serve the elite. The Occupy movement understood this truth. I think the Tea Party also understands this truth. We don’t have a left wing vs right wing problem in this country. We have a top 1% vs the bottom 99% problem. Our system of government is designed to benefit a very small number of us. So in order to tackle the problem, we need to tackle the design of the system of laws that govern us.
Again, quoting Ben Price…
State laws that deny the authority of community governments to protect their health, safety, welfare, and quality of life violate fundamental rights. State laws that exempt agribusiness, energy, waste hauling, water wholesaler, and other corporations from being governed locally, place the privileges of wealth and property over the democratic rights of citizens to determine the future of their own communities. Local officials regularly confess to their constituents that they wish they could do more, but their “hands are tied” by state preemptive law. These officials are told that if they honor their oaths to protect the health, safety and welfare of the community, they will be breaking state law.
Here in Winneshiek County, in the NE corner of Iowa, local elected officials who were simply trying to do the job they were elected to do, have experienced exactly the same sort of push-back from corporations and state government as have their counterparts in other states. Here are some examples:
* wal-mart corporation wanted to build on a flood plain, which violated local laws. The local government was pressured to retroactively change their laws, to assist the corporation’s law-breaking activity.
* waste management corporation wanted to buy the local landfill and turn it into a waste incinerator. In order to stop this corporate plan, the local government had no choice but to buy it themselves.
*A corporate property owner – riverbend land development corporation – wanted to put in a subdivision below an eagle’s nest in a vulnerable ecosystem. Ultimately the National Heritage Foundation had to buy the land simply to protect the area.
* A number of historic local buildings have been bulldozed, against the wishes of many local residents, and in spite of their being listed on the National Register of Historic Places.
* It is a constant struggle to get pesticide spraying stopped around local schools, hospitals and wellheads.
* And most recently, the Winneshiek County Board of Supervisors voted unanimously to deny the necessary permit to the latest factory farm application from millennium agriculture corporation. The Department of Natural Resources then ignored the vote of the local elected officials and approved the permit (which is what agencies like this usually do), so it’s now being appealed to the Environmental Protection Commission, which is also likely to approve the permit. This is how the system works in conventional law! This is how the system is designed to operate. Why? Because the Board of Supervisors’ decision violates the corporation’s so-called “rights”, as well as violating state preemption and Dillon’s Rule.
Is this really the kind of powerlessness that we wish on our local elected officials, who have given oaths to protect the health, safety and welfare of their community? I don’t think so!
These are just a few examples of what happens on the ground, in every local community in this country, when corporations have more rights than we do, and when our state government is allowed to utterly ignore the will of the local residents.
It is time to become a lot less obedient to the laws that violate our rights. It is time to refamiliarize ourselves with our own revolutionary history. Because when we do, we are going to realize that our current situation is eerily similar to that of the early colonists preparing themselves for revolution against the king. It took them decades to shift from begging the king to provide more liberty, to declaring their patience had worn thin and beginning to exercise their inherent right to govern themselves. And to exercise that right required massive acts of civil disobedience.
What will it take for We the People of every town and city across this beautiful country to reach the point where We declare that our patience has worn thin also? That it’s time to exercise our inherent right to govern ourselves? What will it take? How many violations of our rights will it take for us to stand together as community majorities, and say boldly to all who wish to hear us: “No more!”
Before I’m completely out of time tonight, I really want to tell you about some extraordinary developments that are taking place across the country. For the past thirteen years, in 160 communities in nine states, people have been rising up and doing something that hasn’t really taken place in this country since the Abolitionist and Suffragist movements of the 1800’s.
We call ourselves the Community Rights movement, and like the early colonists in the American Revolution, we are refusing to abide by unjust laws. We are doing this by passing local laws that very publicly and directly confront corporate constitutional “rights”, and state government authority to overrule local decision-making. My primary mentor in this work, Thomas Linzey, the director of the Community Environmental Legal Defense Fund, refers to this local law-making as “collective acts of municipal civil disobedience”. Some people would say that our local laws are illegal. We prefer to say that they are not legal yet. Because like the Suffragists and Abolitionists who came before us, sometimes unjust laws have to be violated over and over and over before new laws can take their place.
One of the seminal moments early on in the Civil Rights movement in the South is when four young adults sat down together at a lunch counter and refused to move. They had no idea whether their actions would be noticed or not outside of their own community. No one could have predicted that within weeks of their action, hundreds of lunch counter sit-ins would be happening across the southern states. That small action of four young people caused a cultural eruption that lit up the whole country. … What will be our lunch counter moment? … Obviously, I can’t answer that question. … But I have a pretty good idea that the Community Rights movement will soon reach deep into enough communities that we too are going to see a cultural eruption that will be impossible to stop. Because people across this beautiful country, across political ideologies, are growing sick and tired of We the People’s rights being trampled on.
I am one of the lead organizers of this work in the Pacific Northwest, and am increasingly being invited to travel across the country to assist communities that are considering joining us.
The movement began in the year 2000, when about twenty conservative rural farming communities across Pennsylvania passed laws that banned non-family owned corporations from engaging in farming or owning farmland. These farm communities had learned that this was possible after discovering that nine states had previously passed anti-corporate farming laws, beginning in the early 1900’s. Other rural Pennsylvania communities then followed suit, banning corporations from dumping urban sewage sludge on their farmland. It then spread to other states.
Communities in Maine and New Hampshire banned corporations from setting up water bottling facilities. The city of Pittsburgh banned fracking by a vote of 7 to 0 in its city council just a few years ago when it passed a Right to Water ordinance. Many other communities followed their lead. Most recently, the voters in State College, Ohio, banned any further natural gas pipelines from being placed under their town, with a whopping 72% majority. Mora County, New Mexico just became the first county in the country this year to ban all oil drilling, fracking, and other hydrocarbon removal. Four towns in New Hampshire voted overwhelmingly last year in their annual Town Meetings to protect the residents’ ‘Right to a Sustainable Energy Future’, by banning energy transmission lines that are intended to pass through their towns.
Where I live in Oregon, five counties are actively engaged in Community Rights local law-making campaigns. Two rural counties are working hard to pass ordinances that would protect their right to a local food system, and would ban all GMO agriculture. Another county is hoping to pass an ordinance that would protect their right to a sustainable economy, and would ban all raw log exports from their port town. And in the city of Portland where I live, we are in the early stages of figuring out how we might pass a local law or charter amendment that would enshrine for all residents the right to live in an economically and ecologically sustainable city.
All of our current ordinances also include a recognition that our local ecosystems have a locally-enforceable right to exist, flourish and evolve. And as I described earlier in my talk, our ordinances refuse to recognize State Preemption or Dillon’s Rule, when these state laws violate our inherent right of local self-governance. And they nullify corporate constitutional so-called “rights” within the boundaries of our communities.
We invite you to join us in this rapidly growing network of 160 communities in nine states. Earlier this year, people in Allamakee and Winneshiek counties were introduced to our work when I came to town. Four months ago, the Community Rights Alliance of Winneshiek County was formed with the goal of using the Community Rights strategy to pass a local ordinance that would ban the very destructive process of frac sand mining here in this beautiful place. I applaud those of you who are already active in this local campaign, and encourage the rest of you to jump on board.
Can I ask the members of the Community Rights Alliance of Winneshiek County to stand for a moment so that you can see who’s already doing this work here? Please consider joining them!
Frac sand mining can be stopped here before it starts. But it’s going to take a courageous effort on the part of your local elected officials to pass a rights-based local law to stop it. You are simply not going to be able to stop frac sand mining here using a conventional regulatory approach. We’ve got 40 years of evidence to prove it.
Whereas 160 communities in nine states have already stopped destructive corporate activities using rights-based local law-making.
Our nation and our world are in crisis. Our ecological systems are collapsing. Our economy is increasingly a house of cards. Working people are getting squeezed more and more each year. All of these crises can be addressed in powerful new ways if we start to exercise our inherent right of local self-governance.
And to take this work one step further, we are also in the early stages of creating statewide Community Rights Networks, which will focus their energies on taking back our state laws and state constitutions so that they can no longer be used to violate our rights as We the People. And ultimately, our state networks will be forming a national Community Rights network, because we also have to take back our federal laws and constitution, as they are currently elevating corporate constitutional “rights” over our rights, … and property rights over everyone’s right to live in safe and healthy communities. And that is simply not acceptable.
It doesn’t matter whether you’re a Republican or a Democrat, a Libertarian or a Green. We need all hands on deck! This time, it’s not the king who is threatening us. It’s the very structures of law that are causing so much harm in our communities. In response, we must figure out how to work together, and build community majority support to protect our communities. All of us desire to live in a local place, and a country, where our inherent right to govern ourselves is respected by all of our elected officials, and where our corporate institutions are not constantly violating our rights.
Before I conclude my talk, I’d like to share an amazing opinion piece that I received this week, written by Gail Darrell and other members of the New Hampshire Community Rights Network. I had mentioned previously that four New Hampshire communities had passed ordinances defending the right to a sustainable energy future, and banning long-distance transmission lines through their communities from Canada. This is from one of those communities. Here’s an excerpt:
…The land and the reputation that we’ve inherited from our ancestors have been built from strong stock. Whether we’ve lived close to the land here for generations or have come “from away” to escape the industrialization of our former homes, we have learned how to adapt to a climate that changes practically every ten minutes. The one thing that will never change is our love for the mountains, rivers, streams, and rural communities that is more than a backdrop picture for our lives.
…..We’ve been sending a strong message to Hydro-Quebec, Northern Pass and the corporate partnership built on the promise of more, for over three years. We understand that it takes people seven times before they can hear and internalize new material. We wonder if there is a learning impairment involved that prevents the corporate ownership of one of the most destructive hydroelectric projects on the planet from comprehending the meaning of “no”, or the message of, “not now, not ever.”
…..If New Hampshire needs more energy, we should create statewide initiatives to support and allow local communities to replace fossil fuel consumption with sustainable energy solutions that reflect our way of life. We never asked for, nor do we require, any foreign or corporate entity to create and impose policies on our people without our consent.
…..It’s time to stand up for our communities and our values. To not back down, never apologize and never compromise on rights. Government of right originates in the people and operates by consent. The State operates at the peoples’ behest, not the other way around. This is not an argument about electricity – it’s an argument about rights.
…..No permit for the project, no compromise on rights and no Northern Pass. Not in my backyard, not in anyone’s backyard. Not now, not ever.
I urge you to get involved in your community. Please contact me, Paul Cienfuegos, and my partners at [Community Rights US], to find out how we can assist you and your community. Thank you so very much!