Response to David Yost OpEd on Oleomargarine and Marijuana Prohibition


Below is my response (posted in the comment section) to today’s Opinion piece by Ohio Auditor David Yost.

Ohio marijuana proposal echo cautionary tale of margarine prohibition: Dave Yost (Opinion)


The oleomargarine story is an important bit of buried history worth resurfacing as it relates to corporate power and democracy.

The Ohio legislature was part of the democratic wave in the late 1800’s to control what many believed was not only an inferior but dangerous product — under the “police powers” of the state which gives it the authority to decide rules and laws.

The misnamed Capital City “Dairy” corporation was incorporated by the state in 1893. It openly defied the state law and began manufacturing, selling and dealing this fake butter. The state took them to court, led by Republican Attorney General Frank Monnett. The action wasn’t simply to issue a token fine, but to dissolve the corporation for violating the terms of the democratically enacted law. This was a time when corporate charters were deemed democratic instruments.

The Ohio Supreme Court in 1900 ruled in favor of the state. Part of its decision read:

“This court has held again and again that the police power of the state is properly exercised ‘in the prevention of deception in the sale of dairy products’, and ‘in the protection of the health of the people,’ and it is within the scope of this power to regulate the manufacture and sale of articles of food, even though the right to manufacture and sell such articles is a natural right guaranteed by the constitution.

The mere fact that the criminal laws of the state provide for the punishment, by fine, of those who offend against the above recited sections, is not a bar to a proceeding of quo warranto to oust a corporation engaged in the manufacture of oleomargarine, from the exercise of its right to be a corporation.

…The time has not yet arrived when the created is greater than the creator, and it still remains the duty of the courts to perform their office in the enforcement of the laws, no matter how ingenious the pretexts for their violation may be, nor the power of the violators in the commercial world.

In the present case the acts of the defendant have been persistent, defiant and flagrant, and no other course is left to the court than to enter a judgment of ouster and to appoint trustees to wind up the business of the concern.”

Now, this is real democratic control over corporations!

Mr. Yost implies it was simply citizens clamoring for the yellow colored pork lard: “The political churn made Ohioans burn with passion — they yearned to keep more of what they earned by purchasing cheaper butter substitute”

However, “Big Oleomargarine” (livestock and other industries which stood to profit) certainly played an enormous role in challenging democratic state laws by running to the Supreme Court — which they did on numerous occasions to seek to trump state laws.

The corporate crowd was successful when the Supremes decided in Schollenberger v. Pennsylvania that state bans of yellow oleo violated the “commerce clause” of the US Constitution (hey, it’s “free trade” folks) — and thus, overruling the police power of the states to promote citizen health and safety. Another example of never intended corporate constitutional “rights.”

When states responded by enacting regulatory laws that sought to inform consumers of the difference between real butter and the industrial stuff by prohibiting yellow coloring (as Ohio did in 1890), corporate attorney yet again sought to trump state laws by running to the Supremes.

The corporate attorney-dominated Supremes were once again favorable to their corporate brethren — ruling in McCray v. United States (1904) that state laws and regulations harming the oleomargarine industry were “takings” of profits covered under the 5th Amendment of the US Constitution (application of yet another never-intended corporate constitutional “right” intended for human beings alone — and incidentally what corporations are now arguing would be doable under kangaroo court “Tribunals” set up under the Trans Pacific Partnership, or TPP).

Ohio and its people could no longer prohibit the manufacturing or sale of industrial oleomargarine. The 1949 ballot initiative (probably also backed financially and legally by industry that would profit from it) was only about adding yellow coloring — to make the fake stuff look like real butter.

Corporations then…and now…in multiple ways get what they want and defy democratically enacted laws and regulations by continually playing their “corporate constitutional rights” card. They will continue to do until we say “Enough” and act by amending the constitution to affirm that constitutional rights are for human beings alone.

“The time has [still] not yet arrived when the created is greater than the creator.”

We the People create corporations through charters. We have the authority to prohibit their exercising constitutional “rights.” Let’s use it.


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