Constitution In A Box

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Testimony of Greg Coleridge
Democracy Day Public Hearing, January 17, 2019, Cleveland Heights City Hall

Think of the U.S. Constitution as a box. It symbolizes our democratic space, rights and responsibilities, and limits. It’s a space that allows our public officials and citizens to determine the kind of society – politically, economically, environmentally, socially – that we want. Its size has expanded with each of the 27 Constitutional Amendments, as were passed following democratic people’s movements. The box has also enlarged due to various interpretations of the Constitution by the Supreme Court.

But other Supreme Court interpretations have vastly decreased that democratic space – the box that we call our democracy. Many of those interpretations involved activist Supreme Court decisions that granted corporations with never-intended unalienable constitutional rights – rights that trumped people’s rights. Following each decision by the court, our democratic space contracted – the box became smaller.

Examples:

1819 – Corporate perversion of the Contract Clause
Dartmouth College v. Woodward. A corporate charter is ruled to be a contract and can’t be altered by government. States had less flexibility to use corporate charters as tools to define corporate actions.

1875 – Corporate perversion of the Commerce Clause
Welton v. State of Missouri, 91 U.S. 275. The Supreme Court begins a century long effort to frame every corporations action as a form of “interstate commerce” – which overrules the police power of cities and states to uphold their duty to protect the health, safety and welfare of their communities.

1886 – Corporate perversion of the 14th Amendment
Santa Clara County v. Southern Pacific Railroad
Corporations are in effect granted equal protection rights under the 14th Amendment.

Louis K. Liggett Co. v. Lee (288 U.S. 517, 1933)
Florida voter passed a law that levied higher taxes on chain stores than on locally owned stores. The Supreme Court overturned the law citing the due process and equal protection clause of the 14th Amendment and the Interstate Commerce clause.

1906 – Corporate perversion of the 4th Amendment
Hale v. Henkel – Corporations get 4th Amendment “search and seizure” protection. The public no longer has the ability to publicly inspect corporate books and records to ensure accountability.

A 1978 decision prohibited OSHA inspectors from doing surprise inspections.

1922 – Corporate perversion of the 5th Amendment
Pennsylvania Coal Co. v. Mahon A regulation is deemed a taking. A corporation subject to certain regulations has to be compensated for lost future profits.

1974 – Corporate perversion of the 1st Amendment –
Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 – Corporations granted the right NOT to speak

They don’t have to reveal information, even if that information is important for public safety (i.e. toxins in food).

1980 – Corporate perversion of the 1st Amendment – Commercial speech
Central Hudson Gas & Electric Corp., v. Public Utilities Comm’n, 447 U.S. 557
Corporate “commercial speech” rights (to increase profits_ preempted the state’s right to protect the welfare of its residents.

1976 – Money equals free speech
Buckley v Valeo. Political money in elections is a form of constitutionally protected First Amendment “free speech.”

1978 – Corporate perversion of the 1st Amendment – political free speech
First National Bank of Boston v. Bellotti, 435 U.S. 765. U.S. constitutional law case defines the free speech right of corporations for the first time – the right to spend on issue campaigns.

2010 – Citizens United vs FEC
The ability to influence elections via money from wealthy individuals and corporations is expanded.

Our democratic “box” or space isn’t very large. So many people believe that what’s needed is simply to reverse Citizens United, end corporate political free speech and/or end “money is speech.” As you can see, however, our democratic space or box wasn’t nearly as large as it once was and needs to be before these Supreme Court rulings were made. It’s not enough to get big money out of elections before reversing the fact that our ability to self-rule has been inhibited by numerous court decisions.

That’s why Move to Amend calls for not only ending the constitutional doctrine that “political money is equivalent to 1st Amendment-protected “free speech,” but also calls for ending ALL forms of never -intended and at one time never-existing constitutional rights. Only a 28th Amendment that does both will enable government by We the People.

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Getting Money out of Politics and Beyond: A Call for a We the People Amendment

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http://publici.ucimc.org/2018/12/getting-money-out-of-politics-and-beyond-a-call-for-a-we-the-people-amendment/

by Greg Coleridge

The midterm elections are over. Candidates have been elected and unelected. Ballot issues have been passed and rejected.

What hasn’t changed one iota, however, are the catastrophic harms to people, communities, the natural world and our republican form of self-government caused by the assertion of constitutional rights for corporations, and by political campaign money being defined as First Amendment-protected free speech.

Many believe these problems began with the 2010 Supreme Court Citizens United v FEC decision. It’s true that Citizens United further opened the monetary floodgates onto political elections. The Court asserted that the First Amendment’s free speech clause prohibits government restrictions of  “independent expenditures” for political communications by for-profit corporations, nonprofit corporations, labor unions and other groups.

Since the Supreme Court had previously ruled that corporations were “persons” with free speech rights, corporate funds could now be raised in unlimited sums for “independent” communication (i.e. candidate advertisements by entities that are not coordinated with the candidate). A separate federal court decision based on Citizens United lifted the same legal restrictions on individuals.

The result has frequently been stomach-turning attack ads from across the ideological spectrum that distort the truth about candidates and issues. In addition, when money determines who has access to the podiums, microphones and loudspeakers in an arena, the voices of people and groups without money are relegated to the hallways, basements and back alleys.

The $200 million-plus spent on the Illinois governor’s race, much of it from the wealthy candidates themselves, typifies further movement away from a republican form of self-government and towards a plutocracy (i.e. rule of, by and for the wealthy). Corporate spending on election advertising in Illinois and elsewhere, much of it untraceable “dark money,” represents a second parallel threat—corptocracy (i.e. rule of, by and for corporations).

More than reversing Citizens United is needed to create fair and democratic elections and more than fair and democratic elections are needed to create a legitimate republican form of self-government in which We the People rule.

Our government is broken because the system is fixed—as in rigged to benefit the super-wealthy and corporations. The core problems are the constitutional “rights” anointed by the Supreme Court on corporations and on money spent in elections—both of which predate Citizens United.

Corporations weren’t intended by this nation’s founders to become the governing institution in our country and world. Corporations are creations of government, originally chartered one at a time by legislative acts, which listed specific legal protections and privileges to create useful goods and services, but not with inalienable constitutional rights. Corporate charters were democratic instruments. Corporations that violated their charter provisions regularly had those charters revoked by state legislatures or state courts. We the People were sovereign, corporate creations of the state were subordinate.

No corporation was immune, even the most powerful ones. A Republican state Attorney General sought to revoke Standard Oil Corporation’s charter in 1892 for disregarding its provisions.

The Ohio Supreme Court, in a 1900 ruling to dissolve a dairy company, stated: “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.”

Corporations worked strategically to shift democratic control over to the corporate form in three ways: from the state to the federal level, from the legislative arena to regulatory agencies, and from the legislative arena to the courts. All three strategies sought to move corporate definition beyond the reach of the public and, thus, undermine our republican form of self-government.

The most effective approach was to shield corporate actions by the Supreme Court. Despite the Constitution not mentioning corporations and the Bill of Rights meant to solely apply to human beings, corporate attorneys argued that constitutional rights applied to their clients. Activist Supreme Courts agreed and concocted for over a century corporate constitutional rights out of thin air.

Corporate constitutional rights now include First Amendment free speech and religion, Fourth Amendment freedom from search and seizure, Fifth Amendment freedom from takings, Fourteenth Amendment due process and equal protection, and Commerce and Contracts Clause “rights.”

These never-intended rights have allowed corporations to hijack our republican form of self-government well beyond influencing elections through their “right” to make political donations. These include the rights:

  • to advertise dangerous products (i.e. cigarettes and fracking) over the objections of communities and to avoid labeling genetically modified foods;
  • to avoid subpoenas that would compel testimony about unlawful trade and price fixing, and the right to prevent citizens, communities and regulatory agencies from stopping pollution and other assaults on people or communities;
  • to receive compensation when regulations are established to protect homeowners or communities, including the right to be compensated for all possible future profits they may have made without such regulations;
  • to build chain stores and erect cell towers against the will of communities, oppose tax and other public policies favoring local businesses over multinational corporations and resist democratic efforts to prevent corporate mergers and revoke corporate charters through citizen initiatives; and
  • to ship toxic waste between states over the “health, safety, and welfare” objections of communities – claiming the waste isn’t actually “waste” but “commerce.”

Corporate constitutional rights are just one head of our anti-democratic hydra. The other is the constitutional protection of political money defined as free speech. This dates to the 1976 Buckley v Valeo decision. If money is political speech, as the Supreme Court stated, then those with the most money have the most speech. This is not an ingredient for anything approaching a republican form of self-government, more likely for a plutocracy.

No presidential decree, legislative statute or regulation can end corporate constitutional rights and money defined as free speech. The only solution is a constitutional amendment.

Move to Amend is a national non-partisan coalition of hundreds of organizations and over 450,000 individuals committed to social and economic justice, ending corporate rule and building a vibrant democracy that is genuinely accountable to the people, not corporate interests.

It calls for the We the People Amendment (H.J.R. 48) to the Constitution, declaring that inalienable rights belong to human beings only, not to mere legal entities, and that money is not a form of protected speech under the First Amendment and can be regulated in political campaigns. Sixty-five U.S. House Representatives have endorsed H.J.R. 48. It will soon be introduced in the U.S. Senate. More than 750 communities have passed either local or state resolutions or ballot measures calling for such an Amendment.

Building an authentically multicultural, intergenerational and transpartisan grassroots democracy movement is the only realistic route toward this end. This currently seems pie-in-the-sky. Yet we’re now facing profound political, economic, social and environmental crises. None of this is sustainable. Limits are rapidly being reached. What seems impossible at the moment can quickly become inevitable. Our visions have been repressed by our dominant culture about what is doable, realistic and inevitable – not to mention what is just, democratic and sustainable.

A Move to Amend-sponsored public program recently took place in Champaign-Urbana. There’s interest in exploring what can be done locally to join this growing national movement. If interested in joining this exploration, contact Doug Jones at djones42@gmail.com.

Greg Coleridge is Outreach Director at Move to Amend. He can be contacted at greg@movetoamend.org.

 

“Democracy Day” Public Hearing Testimony

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Testimony of Greg Coleridge
5th Annual Democracy Day Public Hearing
Cleveland Heights, Ohio | January 25, 2018

The federal Republican tax measure passed at the end of 2017 wasn’t a bill as much as a reward — to corporations and the super wealthy.

According to the Tax Policy Center, the top 1 percent will receive 34 percent of the corporate tax cut benefit, and the top 20 percent, 70 percent of the benefit. Eliminating the estate tax only benefits those individuals with wealth exceeding $5 million ($10 million for married couples). Eliminating the corporate and reducing the individual alternative minimum tax also benefits only corporations and the super rich.

Republican Rep. Chris Collins stated about the bill: “My donors are basically saying, ‘Get it done or don’t ever call me again.’” Sen. Lindsey Graham reportedly asserted that if the GOP doesn’t pass the bill, “contributions will stop.” Just 13 days after the tax law was passed, Charles Koch and his wife donated nearly $500,000 to House Speaker Paul Ryan’s joint fundraising committee. This is legalized bribery at its most blatant and sickening form.

So if corporate and individual donors are the winners of the tax bill, who are the losers? The nearly $1.5 trillion increase to the federal deficit will be paid by poor, working and middle class in spending cuts to government programs (including Social Security and Medicare if the Republicans have their way) and tax increases once the very modest tax cuts to the middle class end after eight years. Up to 13 million people also stand to lose their health insurance due to the tax bill/reward. That includes me. I doubt too many of these 13 million were the donors to its Republican supporters. I sure the hell wasn’t.

States and cities are also losers. It will be harder for states and cities to pay their bills. Ending the federal estate tax, reducing individual and corporate taxes and capping federal deductions for state and local taxes will have the double hit of reducing revenue and increasing calls to reduce state and local taxes. I don’t envy any state and local elected official having to deal with these twin challenges.

The rights of corporations and the super wealthy to donate or invest in politics since constitutionally corporations are “persons” and money is “speech” is a major reason for this historic tax heist. But we would be irresponsible here tonight if we did not underline that perversion of the First Amendment by corporations and the super rich is not the only constitutional problem.

Constitutional perversion by corporations claiming “personhood” transcends the First Amendment — and has done so for 130 years. Corporations have claimed 4th Amendment search and seizure rights, 5th Amendment takings rights, 14th Amendment due process and equal protection right — as well as other provisions of the First Amendment beyond the right to speak — including the right not to speak and, thanks to the bizarre Hobby Lobby decision, religious rights. The Commerce and Contracts clauses have also been hijacked to overturn hundreds of democratically enacted laws at the state and local levels.

None of this will ever change is all we do is focus on elections, laws or regulations. I wish it was that easy. It will only chance by changing the foundational governing rules of our nation — by amending the US Constitution, as Move to Amend proposes, to end all never intended corporate constitutional rights and money defined as free speech via the We the People Amendment, H.J.R 48.

In Lewis Carroll’s Through The Looking Glass, Alice laughed: “There’s no use trying, one can’t believe impossible things.” In response, the Queen countered, “I daresay you haven’t had much practice…When I was younger, I always did it for half an hour a day. Why, sometimes I’ve believed as many as six impossible things before breakfast.”

The history of social change in this country via social movements has always been about people believing in the impossible and acting on it. The result – depending on external circumstances and internal preparation – was what was seen as impossible in one year or era became inevitable in the next. Every single social change that expanded the rights to human beings in this nation was considered at first impossible.

Move to Amend’s We the People Amendment is inevitable if we are to avoid the complete evaporation of what’s left of our representative democracy. The Republican tax bill is one more ghastly and in your face reality that our government is fundamentally broken and only We the People can fundamentally fix it.

Testimony at Cleveland Heights “Democracy Day” Public Hearing

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January 25, 2017

Move to Amend’s proposed constitutional We the People Amendment has two components. One is much simpler to understand – ending the constitutional doctrine that money is equal to free speech – because the problems connecting big money to political lobbying and elections are so pervasive.

The other component – ending corporate constitutional rights – is more challenging to grasp. The fundamental problems with corporate constitutional rights transcend the influence of corporate money contributed or invested in political lobbying and elections. Corporate constitutional rights have their own set of components that have in many instances over a century corrupted and perverted authentic democracy.

Beyond corporate free speech rights preventing laws limiting corporate campaign donations, those same 1st Amendment free speech rights have prevented communities from acquiring the right to know what ingredients (i.e, chemicals, GMOs) are in their food. That’s due to the acquired corporate 1st Amendment right not to speak. Corporate religious rights, granted in the Hobby Lobby decision, have limited access to health care to employees. Corporate property rights, (via the 5th Amendment takings clause) have limited laws protecting communities from environmental destruction. Corporate privacy rights (via the 4th Amendment) have limited the health, safety and welfare at workplaces over decades. And corporate commerce rights (via the perversion of the Commerce Clause and 14th Amendment’s equal protection clause) have limited laws and regulations on pipelines, transportation of toxic waste, mining, and landfills.

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Nearly 70 people attended the Democracy Day public hearing

Corporate anthropologist Jane Anne Morris in her book Gaveling Down the Rabble states that 100’s of democratically enacted laws and regulations protecting workers, consumers and the environment passed by Democratic and Republican state and local legislatures over decades have been overturned by the corporate perversion of the Commerce Clause and 14th Amendment. Before the  1st Amendment became the go-to democratically destructive hammer of corporate agents, it was the Commerce Clause and 14th Amendment.

If all we do is overturn Citizens United or merely end money as speech, corporate agents will reach back into their anti-democratic tool kit and assault us like they did in the past – usurping democratically enacted laws. Amending the Constitution is damn hard. It rarely happens. It’s not like reaching a goal through passing a series of laws one piece at a time. We only have one chance. We better make the most of it. That’s why abolishing the legal doctrine of money defined as free speech and corporations defined as legal persons as reflected in the We the People Amendment is mandatory.

History shows that what seems impossible today becomes inevitable tomorrow based on the degree of internal preparedness and timing of external conditions.

Now’s the time to educate ourselves and others, pass resolutions, collect organizational endorsement, organize ballot initiatives, and encourage Congressional endorsers. The right time and conditions externally will inevitably arrive.

Response to David Yost OpEd on Oleomargarine and Marijuana Prohibition

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

Ohio marijuana proposal echo cautionary tale of margarine prohibition: Dave Yost (Opinion)
http://www.cleveland.com/opinion/index.ssf/2015/08/cautionary_tale_on_ohio_mariju.html#incart_river

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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.

We Only Have 1 Realistic Chance to Amend the Constitution

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The Udall Amendment to amend the Constitution to end money as speech doesn’t go far enough.

It’s hard enough to pass any sort of legislation these days, which addresses real problems given the political gridlock and the capture of the political process by corporations and super wealthy individuals. Yet, legislative change is still in a reasonably short amount of time if there’s widespread public support.

Not so with amending our Constitution — which is extremely difficult. It’s only happened 27 previous times in our nation’s history.

Realistically, we only have one lone chance on this issue. The Udall Amendment only addresses one aspect of corporate constitutional rights — as it related to money in elections.

The corporate usurpation of the 4th, 5th, and 14th amendments would continue, as would the corporate perversion of the Commerce and Contract clauses.

The corporate so-called “right” not to speak would also still stand — meaning the recently enacted Vermont law (supported by more than 80% of the public) calling for labeling of products with genetically modified organisms (GMOs) could still be struck down as infringing on Monsanto Corporation’s right “not to speak.” The 1996 Vermont law requiring the labeling of products with bovine growth hormones, in fact, was overturned when Monsanto corporation, Dow chemical corporation and others connected to the International Dairy Foods Association won in court using their constitutional first amendment right “not to speak” defense. This is not democratic.

Challenging local communities favoring locally owned businesses over big box stores over 14th Amendment “equal protection rights” would not be affected.  The recent decision granting corporations religious “rights” would also still stand.

In other words, if we’re going to go through all the time, energy and effort to end corporate personhood and money as speech, it might as well in its entirety end corporate personhood and money as speech. Otherwise, the corporate crowd will simply resurrect other untouched constitutional “tools” or “rights” still at their disposal that go back more than a century to trump democratically enacted laws and regulations.

This is why Move to Amend, unlike the Udall Amendment, is calling for an end to all never-intended inalienable constitutional rights for corporations and an end to money being defined as free speech.