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#699 - Freedom of Association--Part 3, 31-May-2000

[In this series, we are exploring "freedom of association," which
is still denied to working people in the U.S. even though it is
identified as a fundamental human right in the Universal
Declaration of Human Rights, which the U.S. signed in 1948. Last
week we saw that the framers of the Constitution in 1787 inserted
the "commerce clause" and the "contracts clause" into the
Constitution to consolidate the power of the property-owning
class in the young republic. This week we begin to see how these
features of the Constitution today consolidate the power of the
corporation.--P.M.]

by Peter Kellman*

The First Amendment

In order to get the Constitution ratified by the states, the
framers promised that they would support amending the
Constitution to mollify the many complaints voiced against it.
The passage of the First Amendment in 1791, guaranteeing freedom
of speech and assembly, was heralded as a great step forward for
democracy. Workers today are still waiting for the fulfillment of
its promise.

The First Amendment is commonly believed to guarantee us freedom
of the press, speech and assembly. As we know, freedom of the
press (today's media) only applies to those who own the press. As
for freedom of speech and assembly, what the Constitution
actually guarantees is, "Congress shall make no law... abridging
the freedom of speech, or the press; or the right of the people
peaceably to assemble." Let us be clear here. The Constitution
says that, "Congress shall make no law." That is, there will be
no PUBLIC law denying people free speech. But what about the
PRIVATE law? The Constitution does not say that employers cannot
deny workers freedom of speech and assembly. The Constitution
speaks to what the CONGRESS will not do; it does not speak to
what PEOPLE WHO OWN PROPERTY will not do. In other words, if we
want freedom of speech, assembly and association, we need to
amend the First Amendment to say: "Congress shall guarantee the
people's right to freedom of religion, the press, speech,
assembly and association. These rights and the government's
responsibility to promote the General Welfare and Human Rights
shall take precedence over all other matters." So labor got the
shaft but how did corporations, the agency of today's propertied
class, get constitutional protection and support?

Part 3: Expanding the Constitution

Corporations are not mentioned in the Constitution. How did they
get in? In 1816 a class of small property owners and skilled
artisans who believed in Thomas Jefferson's vision that the
United States should have a republican form of government were
elected in such numbers that they held the majority in the New
Hampshire legislature and also elected one of their own as
governor.

Jeffersonian republicanism envisioned a society primarily
composed of small farmers. An important component of republican
philosophy was that it required educated people to insure a
republican form of government. Republicans wanted to know that a
college education would be available for their children, thus
insuring a republican form of government continuing into the
future.

However, colleges during that period were mainly private schools
like Yale, Harvard and Dartmouth, holdovers from the colonial
days. These schools were linked to the past by class and
religion. They were, by design, not republican in nature. Their
original purpose was to spread the word of Christianity in
support of the British Empire and to educate the children of the
elite.

Dartmouth College was chartered by the King of England in 1769 as
an Indian Charity School "with a view to spreading the knowledge
of the great Redeemer among their savage tribes."[1,pg.171] It
soon evolved into a school "to promote learning among the
English, and be a means to supply a great number of churches....
with a learned and orthodox ministry."[1,pg.173] The college was
a cog in the colonial machinery of the British Empire.

Led by Jeffersonian republicans, a national movement developed
after the revolution to turn the colonial colleges into public or
publicly responsible schools. In New Hampshire the movement took
the form of "An Act To Amend The Charter And Enlarge And Improve
The Corporation of Dartmouth College." The text of the law,
passed in 1816, begins, "Whereas knowledge and learning generally
diffused through a Community are essential to the preservation of
free Government, and extending the opportunities and advantages
of education is highly conducive to promote this end," the
legislature made PRIVATE Dartmouth College into PUBLIC Dartmouth
University and ordered it to set up colleges around the state.
New Hampshire Governor William Plumer promoted the change arguing
that the original provisions of Dartmouth College "emanated from
royalty and contained principles... hostile to the spirit and
genius of free government."

The trustees of Dartmouth objected to the charter change and took
the state to court. The state supreme court ruled in favor of the
legislature arguing that the legislature had the right to change
the charter of the college "... because it is a matter of too
great moment, too intimately connected with the public welfare
and prosperity, to be thus entrusted in the hands of a few. The
education of the rising generation is a matter of the highest
public concerns, and is worthy of the best attention of every
legislature." The decision was appealed to the U.S. Supreme Court
which reversed the state court AND GAVE THE CORPORATE FORM A
CONSTITUTIONAL LIFE.

The U.S. Supreme Court was not interested in education. The Court
was set up to be the final protector of a propertied class, and
they delivered, arguing that a corporation is a private contract,
not a public law. The Court decreed that although the state
created the corporation when it issued the charter, it is not
SOVEREIGN over that charter but is simply a PARTY to the
contract.[2] All of which means that the corporation is protected
from state interference by the Contracts Clause of the
Constitution. And Dartmouth University, a public school, once
again became a private college.

The Dartmouth decision of 1819 established the principle that
corporations get constitutional protection because they are
PRIVATE contracts. Then in 1886 the U.S. Supreme Court ruled --in SANTA
CLARA V. SOUTHERN PACIFIC RAILROAD -- that corporations
also have the constitutional shield of "equal protection" as
PERSONS under the 14th Amendment. This means that corporations
are recognized constitutionally and that corporate activity has
14th Amendment "equal protection." In other words corporations
gain significant constitutional protections at a time, 1886, when
most flesh and blood persons -- women, Native Americans and once
again most African American men -- were still DENIED the right to
vote, DENIED equal protection.

If there is any question in your mind about the role the courts
have played in advancing the pre-eminence of the property rights
of a propertied class over the human rights of the working class,
consider these four facts.

1. The 14th Amendment states, "No state shall make or enforce
any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any
PERSON of life, liberty, or property, without due process of law;
nor deny any PERSON within its jurisdiction the equal protection
of the laws"(emphasis added). The 14th Amendment was added to
the Constitution in 1868 to protect the rights of freed slaves,
but as Supreme Court Justice Hugo Black pointed out in
CONNECTICUT GENERAL CO. V. JOHNSON (1938), "Of the cases in this
court in which the Fourteenth Amendment was applied during the
first fifty years after its adoption, less than one-half of one
percent invoked it in protection of the Negro race, and more than
fifty percent asked that its benefits be extended to
corporations."

2. In MINOR V. HAPPERSETT (1875) the women of Ohio argued that,
under the 14th Amendment, protection of due process, the U.S.
Constitution established that their right to vote could not be
denied by the state. The U.S. Supreme Court rejected that
argument. Women received constitutional protection for the right
to vote 48 years later in 1920 when the 19th Amendment to the
Constitution established that the right to vote could not be
denied on the basis of sex.

3. While the courts were extending "rights" to corporate persons
and denying them to women, by 1920 the courts had struck down
roughly 300 labor laws.[3]

4. More than 1,800 injunctions against strikes were issued
between 1880 and 1931. Of the 118 labor injunctions heard in
federal courts between 1901 and 1928, 70 of them were issued EX
PARTE, i.e. without giving the defendants the opportunity to be
heard because the defendants were not even notified of the
hearing.[4] All the defendants in these cases were labor unions.

It appears that the Supreme Court has two sides to its brain.
With one side it creates, protects and promotes "rights" for the
institutions of the rich, and with the other side it suppresses
human rights, like the right to vote and the right to associate.

Back to the Dartmouth College case. Following the logic of
contracts, the U.S. Supreme Court also ruled that because the
state is party to the contract the state can amend, abolish or
change the contract at any time as long as there is a state law
to that effect. So shortly after the Dartmouth decision, all the
states passed laws, which are still in effect today, called the
"reserve clause." The "reserve clause" retains the right of the
state to change, abolish or alter corporate charters.[5] How
would you like to be involved in a legislative struggle to revoke
the charter of a corporation that permanently replaces strikers
or moves factories and destroys communities?

Three People's Movements

One of the reasons the framers of the Constitution created a
federal government was to protect themselves from those who also
wanted to be included in "We the People." By the 1830s, movements
to end slavery, advance the cause of labor and extend equal
rights to women came to the fore. Slavery was ended after the
Civil War with the passage of the 13th Amendment in 1865.
Women's struggle to win the right to vote culminated with the
passage of the 19th Amendment in 1920.

With the passage of these amendments and the continuing agitation
by the people who put them in the Constitution, major changes
have taken place in our society. The restrictions on voter
registration relating to property, sex and race are now gone, the
society has been desegregated and women and people of color WITH
PROPERTY now have access to due process. And maybe the most
important thing the movements for sexual and racial equality have
done is to put the story of their struggles into school books and
created departments at our universities dedicated to the study
and promotion of the goals of the movements that created them.
However, labor has yet to make it into the Constitution, because
the one concession that a propertied class will fight the hardest
is one that would lead to a redistribution of wealth.

[To be continued.]

=====

*Peter Kellman works for the Program on Corporations, Law and
Democracy (POCLAD). For information on POCLAD, E-mail
people@poclad.org; or www.poclad.org; or phone: (508) 398-1145;
or mail: P.O. Box 246, So. Yarmouth, MA 02664-0246.

[1] Elsie W. Clews, EDUCATIONAL LEGISLATION AND ADMINISTRATION OF
THE COLONIAL GOVERNMENTS (N.Y.: MacMillan, 1899).

[2] For more details about the Dartmouth case, send a request to
POCLAD for Vol. 2, No. 2 and Vol. 2, No. 3 of their quarterly
publication BY WHAT AUTHORITY. E-mail people@poclad.org, or phone
(508) 398-1145.

[3] William B. Forbath, LAW AND THE SHAPING OF THE AMERICAN LABOR
MOVEMENT (Cambridge, Mass.: Harvard University Press, 1991), pg.
38.

[4] Leon Fink, IN SEARCH OF THE WORKING CLASS: ESSAYS IN AMERICAN
LABOR HISTORY AND POLITICAL CULTURE (Urbana, Ill.: University of
Illinois Press, 1994), pg. 251.

[5] All state and federal laws are included, embedded, in all
private contracts. Therefore if a state passes a law reserving
the right to unilaterally change a contract it can do so. These
"reserve clause" rights are considered to be part of every
corporate charter created by the state. Therefore when a
corporation is chartered, the parties involved agree that the
state has the right to change the corporate charter without the
consent of the other parties.

Descriptor terms: labor; constitutional law; human rights;
freedom of association; constitution; first amendment; fourteenth
amendment; nineteenth amendment; dartmough college case;
contracts clause; corporations;