This article by Jane Anne Morris (DemocracyThemePark.org) was originally published in the Spring 2008 edition of By What Authority, and was adapted from her book, Gaveling Down the Rabble.
What’s pink, French, and unconstitutional?
Hint: The story of this early “frankenfood” provides an advance script for the current global “free trade” frenzy. Over a century ago, its introduction was an occasion for greasing the skids toward establishing a U.S. “free trade” zone, one that is as devastating to local democracy as the WTO and NAFTA are to national sovereignty.
Why would the Supreme Court throw out state laws requiring oleomargarine to be colored pink? Why would state legislators pass such seemingly silly laws to begin with?
Why are provisions that protect citizens against fraud, safeguard their health, and protect local industry unconstitutional in the eyes of the Supreme Court? A recent example applies to corporate agriculture. A South Dakota constitutional amendment — passed by 59% in 1998 — prohibited most corporate ownership of land used for agriculture. In 2004, the U.S. Supreme Court effectively threw it out. Nebraska’s even stronger anti-corporate agriculture constitutional amendment, first passed in 1982, was ruled unconstitutional in 2006 by a lower federal court–citing the South Dakota case.1 Why do such measures garner the dreaded unconstitutional label?
Probably for the same reason that has stood for over a century: they interfere with the care and feeding of large corporations. They challenge the Supreme Court’s policy, evident since at least the 1870s, of nurturing and protecting corporations against the very states that created them. After corporate lawyers do the research and outline possible arguments, the Court has only to cut-and-paste a decision.
The myth that the Supreme Court began its turn toward “business interests” only since the early Nader years (as claimed by Jeffrey Rosen in “Supreme Court, Inc.” in the March 16, 2008 New York Times Magazine) ignores the long history that fills the pages of Gaveling Down the Rabble.
Even the Supreme Court needs to point to something in the Constitution that justifies its consistent pro-corporate decisions. The handy constitutional clause that has become a favorite is the domestic version of international “trade barrier” language: the commerce clause of the U.S. Constitution.
The Congress shall have power… to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. [Article I, section 8, clause 3]
The late-nineteenth century Pink Oleo saga provides a perfect example for a quickie workshop on how the Supreme Court uses “free trade” to get rid of good state laws. MORE…