This article by Jane Anne Morris (DemocracyThemePark.org) was originally published in the Spring 2009 edition of Synthesis/Regeneration, and was based on remarks made at Synthesis/Regeneration’s “Surviving Climate Change: Producing Less and Enjoying It More” Roundtable, in St. Louis, Missouri in June 2008.

Working in tandem with a cooperative Supreme Court, corporate lawyers have insinuated themselves into the US Constitution like retroviruses, rewriting Constitutional code so that instead of protecting human persons from an oppressive government, the Constitution has been twisted to shield corporate persons (corporations) from control by the governments that create them. …

…..There is no magic model that will take care of this massive problem. Pro-corporate Constitutional doctrines — each as devastating as “separate but equal” — have been built up over generations. Like “separate but equal,” they need to be eliminated. As with “separate but equal,” elimination of them first requires knowledge and understanding of them. This doesn’t mean that we all need to become legal scholars. It does mean that, like the courageous people who wanted to pick their own seats on buses or have coffee at drugstore counters, we must be aware of the problem.

We won’t be in shape to petition Congress, or to mount test cases, until we understand the way the Constitution has been used to frustrate the people’s repeated legislative efforts to go green. More than anything, this understanding requires an attitude change.

When someone — an elected representative, a lawyer, a corporate PR person — tells you that such-and-such a law (that would straightforwardly address some urgent problem) is unconstitutional, don’t apologize and scurry away. Stand your ground and ask, “Why?”

If they’re well-briefed, and even bother to answer, they will respond by mumbling the legalese “commerce clause” or “due process” or some such, and expect you to back off. Ask “How’s that?” and you will have gone further than most people on the green band of the spectrum have gone for some time.

When a green law is declared unconstitutional, that event is a data point, not an end point. Those who oppose a green future do not quit when they lose a case. Their game plan, like a coin, has two sides. Heads is the issue. (This is where they explain that a) chemical X has no environmental or health effects, b) the effects are within legal limits, and c) even if there were effects, they are totally safe, even good for you!). Tails is the cluster of Constitutional arguments that they will use, as they have for many generations, to convince federal judges that the measure is unconstitutional. This dual strategy–issue-plus-doctrine–has served them well.

While we are honking for peace and practicing our three-minute speeches for regulatory hearings, corporate lawyers are just taking the same old arguments off the shelf that have been working, for the most part, for a century or more. Our campaigns, too, need to address both heads (the issue) and tails (the Constitutional doctrines) surrounding whatever problem we are working on. MORE…