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#780 - Challenging Corporate "Rights", 15-Oct-2003

(Published November 13, 2003)

This week we introduce Mike Ferner (mike@poclad.org) and some
new ideas about challenging corporate rights. Mike served two
terms as an independent member of the Toledo, Ohio, City
Council, 1989-93. Before that, he was an organizer for the
American Federation of State, County and Municipal Employees
(AFSCME). From 1969 to 1973 he served in the U.S. Navy Hospital
Corps. He is one of 13 individuals who make up the Program on
Corporations, Law and Democracy (POCLAD).

From 1970 to 1995, the environmental and labor movements in the
U.S. often focused on the failures of government to protect
human health and the environment. Today it is safe to say --thanks to
POCLAD's work -- most of us understand that "the
corporation" lies near the heart of most major problems.

In POCLAD's view, "Giant corporations govern, even though they
are mentioned nowhere in our Constitution or Bill of Rights. So
when corporations govern, democracy is nowhere to be found.
There is something else: when people live in a culture defined
by corporate values, common sense evaporates. We stop trusting
our own eyes, ears, and feelings. Our minds become colonized.
POCLAD invites you to work with us to change this."

People are challenging corporate "rights" in many ways. In
Pennsylvania, attorney Tom Linzey of the Community
Environmental Legal Defense Fund is challenging corporate
rights in court. Take a look at target="_blank">http://www.celdef.org .
In New Jersey, legislation has been drafted. See
target="_blank">http://rachel.org/library/getfile.cfm?ID=324 and
target="_blank">http://rachel.org/library/getfile.cfm?ID=323 In
Ohio, people
are making films, writing books, and much more. See, for
example, target="_blank">http://www.afsc.net/corp-dem.htm

History shows us that there is no silver bullet for these deep
problems. What did it take to end slavery, gain the vote for
women, and get working people what rights they've got?
Education, pamphleteering, organizing, ballot initiatives,
marches, demonstrations, protests, strikes, creative legal work
and -- yes -- civil disobedience. Hats off to POCLAD and to
Mike Ferner! --Peter Montague


by Mike Ferner (mike@poclad.org)

The Fourth Amendment to the U.S. Constitution states: "The
right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the
persons or things to be seized."

What has this got to do with a rail shipment of leaking
radioactive waste on its way from the Big Rock Point Nuclear
Plant near Charlevoix, Michigan to the nuclear waste dump at
Barnwell, South Carolina? Furthermore, what's it got to do with
my getting arrested recently, in Walbridge, Ohio?

When Consumer's Power Co. in Michigan had wrung all the
possible profits out of its Big Rock Point reactor, it shut it
down and "decommissioned" the 580,000-pound, stainless steel
reactor vessel that had been bombarded with radiation for over
30 years. Barnwell is the only place in the nation that accepts
this kind of radioactive garbage, and Walbridge is on the CSX
Corp. rail line between there and Michigan.

As the train crept along its route through cities and farms, it
leaked a little radiation here and a little radiation there;
none of it requested by people or nature in its path; all of it
cumulative in its health effects. In Walbridge, it made an
unscheduled overnight stop, irradiating that village a little
more than most.

Just how much radiation leaked from the shipment we'll never
know, since the only figures kept on it come from Consumer's
Power Co. Even the public's toothless lapdog, the Nuclear
Regulatory Commission, can't find out without first getting
permission from the electric company. And that's where the 4th
Amendment and my arrest come in.

These days, many more people are becoming aware that over the
past 100+ years, the U.S. Supreme Court has given corporations
an increasing number of Constitutional rights intended for
flesh-and-blood persons. They recognize the name for this
nefarious usurpation of our rights as "corporate personhood."

Coincidentally, it was lawyers arguing for a railroad company,
Southern Pacific Railroad, in an 1886 case against Santa Clara
(Calif.) County, who first succeeded in convincing the U.S.
Supreme Court that for purposes of the equal protection
provisions of the 14th Amendment (passed, by the way, to
protect slaves freed in the Civil War), corporations should be
considered legal "persons." With the floodgates so opened, one
right after another was extended to these aggregations of
property in the corporate form.

In 1906 (Hale v. Henkel), the Court nullified a grand jury
subpoena issued to compel tobacco companies to produce
documents in a price fixing investigation, saying it violated
the companies' "rights" against unreasonable searches and
seizures. In 1978 (in Marshall v. Barlow's Inc.), the Court
said that the federal Occupational Safety and Health
Administration (OSHA) could not inspect the company's workplace
without first securing a search warrant.

So there we were in Walbridge, Ohio looking across 350 feet of
private property at the reactor vessel sitting in a CSX Corp.
rail yard, recording the slightly elevated readings registering
on our radiation monitors. We knew the radiation dose would
increase the closer we got to the cask, but to do so we would
need permission from the legal "person" known as CSX Corp. If
that legal fiction didn't have to let the NRC monitor it
without a warrant, it certainly wasn't going to allow me.

And isn't that the way the rule of law works? Grind up workers
on the job, bury the amber waves of grain in asphalt, irradiate
the countryside, send a generation off to war -- and by and
large, it's all legal. But try to see how much radioactive
poison a rail cask is leaking, and son, you're going to jail!

That's why I couldn't just stand there on the side of the road
in Walbridge, being a nice, law-abiding citizen. Nice,
law-abiding citizens had stood by the side of the road for the
last 100 years and watched as corporations became persons and
took 14th Amendment rights, and 4th Amendment rights, and 1st
Amendment rights -- and used them to run our society and govern
our nation.

So instead, I turned to Kevin Kamps from the Nuclear
Information and Resource Service (or NIRS; see href="http://www.nirs.org" target="_blank">www.nirs.org)
and asked him if he wanted to get arrested. He answered "yes"
and attorney Terry Lodge said he'd represent us. With monitors
in hand, and carrying a banner that read "End the Atom Age,"
Kevin and I strode through briars and mud towards the train. As
we suspected, our readings jumped as we got closer. But when we
reached the cask, the railroad cops were waiting with handcuffs
and hauled us away before we could get a final reading.

We will plead innocent to misdemeanor charges of criminal
trespass and demand a jury trial. We will see what our fellow
citizens have to say about the 4th Amendment, leaking nuke
trains and corporate "persons."

There's a new tool we may employ in our defense, one that looks
promising for citizens who want to redefine what kind of
commerce comes to their towns. It's called the "Model Legal
Brief to Eliminate Corporate Rights." It is available on the
web at target="_blank">http://www.poclad.org/ModelLegalBrief.cfm and also
target="_blank">http://rachel.org/library/getfile.cfm?ID=321 .

The Model Legal Brief was written by Richard Grossman, founder
of the Program on Corporations, Law and Democracy (POCLAD), Tom
Linzey, president of the Community Environmental Legal Defense
Fund ( target="_blank">www.celdf.org), and Dan Brannen, a Santa Fe (N.M.)
attorney. The brief begins with a "Preface" that lets activists
know right off that this is not your grandfather's legal brief:

"This Brief is intended to assist communities organizing to
challenge the United States government's gift of constitutional
powers to property organized as corporations. Accordingly, this
Brief is NOT about corporate responsibility, corporate
accountability, corporate ethics, corporate codes of conduct,
good corporate 'citizenship,' corporate crime, corporate
reform, consumer protection, fixing regulatory agencies, or

In the "Summary of Argument," the brief clearly states who's
supposed to be running the show:

"...[T]he people of these United States -- the source of all
governing authority in this nation -- created governments to
secure the people's inalienable right that the many should
govern, not the few. That guarantee -- of a republican form of
government -- provides the foundation for securing people's
other inalienable rights (life, liberty and the pursuit of
happiness) and vindicates the actions of people and communities
seeking to secure those rights."

One of the brief's assets is that, while it undoubtedly will
inform legal decisions to come, it also becomes a useful
educational tool for today's activists by succinctly answering
the perennial question, "How did we get into this mess?" It
makes clear how corporations are supposed to fit into U.S.
society, just how they became insubordinate, and who
contributed to their delinquency at key moments.

"Corporations are created by State governments through the
chartering process. As such, corporations are subordinate,
public entities that cannot usurp the authority that the
sovereign people have delegated to the three branches of
government. Corporations thus lack the authority to deny
people's inalienable rights, including their right to a
republican form of government, and public officials lack the
authority to empower corporations to deny those rights."

"Over the past 150 years," Grossman, Linzey and Brannen write,
"the Judiciary has 'found' corporations within the people's
documents that establish a frame of governance for this nation,
including the United States Constitution. In doing so, Courts
have illegitimately bestowed upon corporations immense
constitutional powers of the Fourteenth, First, Fourth, and
Fifth Amendments, and the expansive powers afforded by the
Contracts and Commerce Clauses."

It then cites chapter and verse of when and how the judiciary
"found" corporations in our governing documents. It's clear
that human beings -- federal judges to be exact -- agreed over
time with people generally of their own social class --corporate
attorneys -- that greater rights should be extended
to property organized in the corporate form. I've described
above how that worked for the 4th Amendment. The brief gives
you the whole ball of wax.

The next three sentences of the Summary cut like a laser to the
heart of the problems facing us today. "Wielding those
constitutional rights and freedoms, corporations regularly and
illegitimately deny the people their inalienable rights,
including their most fundamental right to a republican form of
government. Such denials are beyond the authority of the
corporation to exercise. Such denials are also beyond the
authority of the Courts, or any other branches of government,
to confer."

And it ends with an appeal that, with enough organizing in the
streets, will once again be recognized in the courtrooms of our
land: "Accordingly, the constitutional claims asserted by the
[x corporation] against [y government] must be dismissed
because those claims deny the people's rights to life and
liberty, and their fundamental right to self-governance."

Such is our hope and our life's work.

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