CELDF Model Brief to Eliminate Corporate Rights
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 stakeholders.
OF THE AUTHORS.
BRIEF OF AMICI CURIAE
THE COMMUNITY ENVIRONMENTAL LEGAL DEFENSE FUND, INC.
THE PROGRAM ON CORPORATIONS, LAW, AND DEMOCRACY, and
RICHARD L. GROSSMAN
Thomas Alan Linzey, Esq.
Daniel E. Brannen, Jr., Esq., Of Counsel
Community Environmental Legal Defense Fund, Inc.
2859 Scotland Road
Chambersburg, Pennsylvania 17201
Counsel for Amici Curiae Community Environmental
Legal Defense Fund, Inc. and The Program
On Corporations, Law, and Democracy
Richard L. Grossman, pro se
Table of Contents
Table of Authorities. . . . . . . . . . . . . . . . . . . . . . [omitted]
Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . 4
I. It is Axiomatic That People Secure and Protect Their Inalienable Rights to Life, Liberty, Happiness, and a Republican Form of Government Through the Institution of Democratic Governments. . . . . . . . . . . . . . . . . . . . . . .5
II. Corporations are Created by State Governments as Subordinate, Public Entities Through the Chartering Process, and Thus Cannot Act to Deny People’s Rights to Safety, Liberty, the Pursuit of Happiness, or a Republican Form of Government Within this Nation’s Frame of Governance. . . . . . . . . . . . . . . . 11
III. Over the Past 150 Years, the Judiciary Has “Found” Corporations Within the U.S. Constitution, and Bestowed Constitutional Rights Upon Them. . . . . . .18
A. “Finding” Corporations in the Fourteenth Amendment. . . . . . . . 19
B. Corporations and the Bill of Rights. . . . . . . . . . . . . . . .24
(1). “Finding” Corporations in the First Amendment. . . . . . . 25
(2). “Finding” Corporations in the Fourth Amendment. . . . . . .27
(3). “Finding” Corporations in the Fifth Amendment. . . . . . . 29
(4). “Finding” Corporations in the Contracts and Commerce Clauses. 31
IV. Corporations Illegitimately Wielding Constitutional Rights of Persons Against People and Communities Regularly Deny the People Their Inalienable Rights, Including Their Right to a Republican Form of Government. . . . . . . . . .33
A. Corporate Personhood and the Denial of People’s Inalienable Rights. . 35
B. Corporate First Amendment Rights and the Denial of People’s Inalienable Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
C. Corporate Privacy Rights and the Denial of People’s Rights to Safety, Security, Health, and Welfare. . . . . . . . . . . . . . . . . . . 49
D. Corporate Fifth Amendment Takings and the Denial of People’s Inalienable Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
E. Corporations Wielding the Contracts and Commerce Clauses Interfere With the People’s Inalienable Right to Life, Liberty, and a Republican Form of Government. . . . . . . . . . . . . . . . . . . . . . . . . .53
V. This Court Must Dismiss All Constitutional Claims Brought by [X] Corporation Against [Y] Government Because the Assertion and Validation of Those Rights Denies the People’s Inalienable Rights, Including Their Right to a Republican Form of Government. . . . . . . . . . . . . . . . . . . . . . . . . . . 60
VI. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Summary of Argument
The people of these United States created local, state, and federal governments to protect, secure, and preserve the people’s inalienable rights, including their rights to life, liberty, and the pursuit of happiness. It is axiomatic that the people of these United States – the source of all governing authority in this nation - created governments also 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 and vindicates the actions of people and communities seeking to secure those rights.
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, 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.
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.
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.
I. It is Axiomatic That People Secure and Protect Their Inalienable Rights to Life, Liberty, Happiness, and a Republican Form of Government Through the Institution of Democratic Governments.
If there is one bedrock principle upon which the people of these United States established local, state, and federal governments, it is that governments are instituted to secure and protect the people’s inalienable rights, including their right to a republican form of government.
As eloquently proclaimed by the Declaration of Independence,
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness - That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
THE DECLARATION OF INDEPENDENCE para. 1 (U.S. 1776).
That principle, echoed by this nation’s colonists throughout the Resolves of the Continental Congress, early state Constitutions, and the Articles of Confederation, is reflected throughout the writings of Locke, Hume, Montesquieu that the early colonists used to deepen and strengthen the American Revolution – to frame their dispute as one in which the King and Parliament were incapable of providing a remedy premised on self-governance.
The Revolution thus reflected the understanding that people, otherwise existing in a state of nature, do not relinquish their inalienable rights when governments are instituted, but that governments are instituted specifically to guarantee and protect those freedoms and rights. Thomas Gordon once summarized that fundamental principle in the form of a question, asking:
What is Government, but a Trust committed by All, or the Most, to One, or a Few, who are to attend upon the Affairs of All, that every one may, with the more Security, attend upon his own?
Thomas Gordon, CATO’S LETTERS, No. 38, July 22, 1721.
Early Americans used the U.S. Constitution to codify that understanding by declaring that a federal government would be formed by the States to protect and preserve people’s rights, stating that:
We the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America (emphasis added).
People struggling to drive civil rights for newly freed slaves into the Constitution following the Civil War fashioned the Fourteenth Amendment, which refers to inalienable rights as “privileges and immunities” of citizens. Through that Amendment, they sought to further guarantee the underlying principle – that governments are instituted by people to protect rights – by declaring:
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 to any person within its jurisdiction the equal protection of the laws.
U.S. CONST. amend. XIV.
Through the Fourteenth Amendment, the abolitionists constitutionalized the people’s inalienable rights to life, liberty, and happiness, driving the principles of the Declaration of Independence into the Constitution. As scholar Robert J. Reinstein explained:
[A] national political movement brought the Declaration of Independence “back into American life.” The Declaration was the secular credo of the abolitionists. The Declaration not only supported their moral and political assaults on slavery but was the foundation of their constitutional theories.
Thus, the founding documents of the States and the United States codify the understanding that governments are instituted to secure inalienable rights possessed by people, including their right to enjoy life and liberty, and the right to pursue and obtain happiness and safety. Underlying that principle is the belief that securing those freedoms and rights requires the institution of a republican form of government, and that the right to a republican form of government is a separate guarantee. That right guarantees that the powers of governance are vested in the majority, not in the hands of a privileged minority who might seek to use government to attain private goals.
In the words of delegates writing the first Massachusetts Constitution, “[n]o man, nor corporation, or association of men, [shall] have any other title to obtain advantages, or particular and exclusive privileges, distinct from those of the community” and that if governments are subverted for the “profit, honor, or private interest of any one man, family, or class of men,” then the fundamental principle underlying the institution of governments is usurped.
II. Corporations are Created by State Governments as Subordinate, Public Entities Through the Chartering Process, and Thus Cannot Act to Deny People’s Rights to Safety, Liberty, the Pursuit of Happiness, or a Republican Form of Government Within this Nation’s Frame of Governance.
The cause of the American Revolution was the systemic usurpations of the rights of colonists by the English King and Parliament. Those usurpations occurred primarily through the King’s empowerment of eighteenth century corporations of global trade - such as the East India Company - and through Parliamentary Acts taxing colonial trade. Oft-cited as the final spark of the Revolutionary War, the Boston Tea Party was the direct result of colonial opposition to the East India Company’s use of the English government to enable the Company to monopolize the tea market in the colonies. The signing of the Declaration of Independence transformed crown corporations and royal proprietorships into constitutionalized states. Elected State legislators, possessing personal knowledge of the power of English trading corporations, worked to ensure that corporations within the new nation would be controlled and defined exclusively by legislatures. Accordingly, people made certain that legislatures issued charters, one at a time and for a limited number of years. They kept a tight hold on corporations by spelling out rules each business had to follow, holding business owners liable for harms or injuries, and revoking corporate charters. Side by side with control and authority over corporations – exercised through their elected legislators – the people experimented with various forms of enterprise and finance. Artisans and mechanics owned and managed diverse businesses; farmers and millers organized profitable cooperatives; shoemakers created unincorporated business associations. Towns routinely promoted agriculture and manufactures. They subsidized farmers, public warehouses, and municipal markets, protected watersheds, and discouraged overplanting. Legislatures also chartered profit-making corporations to build turnpikes, canals, and bridges, declaring that corporations could only be chartered for “public purposes.” By the beginning of the 1800’s, only some three hundred such charters had been granted.
Many people argued that under the Constitution no business could be granted special corporate privileges. Others worried that once incorporators amassed wealth, they would control jobs and markets, buy the newspapers, and dominate elections and the courts.
Premised upon the widespread public knowledge of the powers wrought by English corporations and the people’s opposition to them, early legislators granted few charters, and only after long, hard debate. Legislators usually denied charters to would-be incorporators when communities opposed the proposed corporation. People shared the belief that granting charters was their exclusive right. Moreover, as the Supreme Court of Virginia reasoned in 1809, if the applicants’
object is merely “private” or selfish; if it is detrimental to, or not promotive of, the public good, they have no adequate claim upon the legislature for the privileges.
Morton J. Horwitz, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860 112 (1977).
States limited corporate charters to a set number of years. Maryland legislators restricted manufacturing charters to fifty years, and most others to thirty. Pennsylvania limited manufacturing charters to twenty years. Unless a legislature renewed an expiring charter, the corporation was dissolved and its assets divided among shareholders. Citizen authority clauses dictated rules for issuing stock, for shareholder voting, for obtaining corporate information, for paying dividends and keeping records. They limited capitalization, debts, land holdings, and sometimes profits. They required a company’s accounting books to be turned over to a legislature upon request. Interlocking directorates were outlawed. Shareholders had the right to remove directors at will. Some state laws required banks to make loans for local manufacturing, fishing, and agricultural enterprises, and to the states themselves. Banking corporations were forbidden to engage in trade. Most state legislatures provided that directors and stockholders remained personally liable for debts and harms caused by their corporations. One corporation could not own another, or own shares in other corporations. In short, corporations were nothing more than what the people defined them to be through legislation, and possessed only those rights granted by such legislation. The people of these United States did not want business owners hidden behind legal shields, but in clear sight. As the Pennsylvania legislature declared in 1834:
A corporation in law is just what the incorporating act makes it. It is the creature of the law and may be moulded to any shape or for any purpose that the Legislature may deem most conducive for the general good.
Carter Goodrich, THE GOVERNMENT AND THE ECONOMY, 1783-1861 374 (1967).
People believed that when a corporation subverted the fundamental purpose for which governments were instituted, legislatures should dissolve the corporation. Accordingly, all states adopted corporate charter revocation laws to codify the common law writ of quo warranto (“by what authority”) – not only to revoke the charters of specific corporations, but to recognize that a corporation exceeding its limited authority injures the entire body politic. This short history of corporations in these United States reveals that corporations - because of the American revolutionaries’ successful resistance to illegitimate rule - were chartered as merely one of many subordinate, public entities used by the people to achieve the fundamental purposes for which governments were instituted.
It is well settled law that corporations are creations of the state. The United States Supreme Court has reaffirmed the principle that corporations are “creatures of the state” in at least thirty-six different rulings. It is also well-settled law that the Constitution not only protects people against the “State itself,” but also against “all of its creatures.” See West Virginia State Board of Education v. Barnette, 319 U.S. 624, 637 (1943).
As public creations, corporations lack any authority within this nation’s frame of governance to deny people’s inalienable rights to life, liberty, safety, security, health, and freedom, or to interfere with the operation of the people’s republican governments.
III. Over the Past 150 Years, the Judiciary Has “Found” Corporations Within the U.S. Constitution, and Bestowed Constitutional Rights Upon Them.
Over the past 150 years of existence of the United States, the judiciary has conferred constitutional protections - once intended to protect only natural persons - upon corporations. The method by which the judiciary has conferred rights upon corporations has consisted of “finding” corporations in the Fourteenth Amendment, the First Amendment, the Fourth Amendment, the Fifth Amendment, and the Contracts and Commerce Clauses of the Constitution.
A. “Finding” Corporations in the Fourteenth Amendment After political expedience convinced Abraham Lincoln to use the Civil War to outlaw slavery, people forced the federal government to pass the Civil Rights Act of 1866 and constitutional amendments to give rights to newly freed slaves, which the drafters of the Constitution failed to define as “persons.” Adopted in 1868, Section 1 of the Fourteenth Amendment says:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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 to any person within its jurisdiction the equal protection of the laws.
The guarantees of the Fourteenth Amendment have been expanded to include a litany of personal liberty rights.
Working for corporate clients enriched and empowered by the Civil War, lawyers began persuading judges to use the language of the Fourteenth Amendment to overturn state legislation originally intended to subordinate corporations. Their efforts led to a transformation of the law, undermining the republican frame of governance. As Justice Brennan has declared, “by 1871, it was well understood that corporations should be treated as natural persons for virtually all purposes of constitutional and statutory analysis.” Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 687 (1978).
In San Mateo v. Southern Pacific R. Co., 13 F. 722 (C.C.D. Cal. 1882), corporate lawyers attacked a provision of the California constitution that assessed property taxes against railroad corporations differently from assessments for non-corporate properties. Attorneys for the railroad companies argued that by taxing their property differently from the property of natural persons, California violated corporate “rights” secured by the Equal Protection Clause of the Fourteenth Amendment. When the case reached oral argument in the Supreme Court in 1885, Roscoe Conkling, a former member of the joint congressional committee that had crafted the Fourteenth Amendment - and lawyer for the Southern Pacific Railroad Company - suggested to the Court that the committee had corporations in mind when it put pen to paper in 1866: "[a]t the time the Fourteenth Amendment was ratified," Conkling alleged, "individuals and joint stock companies were appealing for congressional and administrative protection against invidious and discriminating State and local taxes." Conkling then intimated that the drafters of the Fourteenth Amendment had purposely used the word “persons” - instead of “citizens” - to specifically shield corporations from those State and local taxes.
The parties settled San Mateo before the Supreme Court announced a decision. During oral argument in another California railroad taxation case several years later, Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394 (1886), Chief Justice Morrison Waite accepted Conkling’s proclamation, declaring:
[t]he Court does not wish to hear arguments on the question whether the provision of the 14th Amendment to the Constitution which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to corporations. We are all of the opinion that it does.
Three years later, the Court “found” corporations in the Due Process Clause of the Fourteenth Amendment and bestowed Due Process protections upon corporations. Minneapolis & St. Louis Railroad Company v. Beckwith, 129 U.S. 26 (1889). The inclusion of corporations within the Equal Protection and Due Process Clauses of the Fourteenth Amendment, however, has been challenged by even Supreme Court jurists.
Thus, at least from the standpoint of Supreme Court caselaw, did corporations become “persons” under the Constitution, empowered to wield corporate Due Process and Equal Protection rights under the authority of the Fourteenth Amendment, just like natural persons. Attempts by the legal community to justify those conferrals paralleled those judicial developments.
B. Corporations and the Bill of Rights Prior to the submission of the Constitution to state legislatures for ratification, eight states had already prefaced their own Constitutions with a Bill of Rights. Accordingly, many states conditioned their ratification of the Constitution upon the addition of a Bill of Rights to the document. In 1789, state delegates succeeded in amending the U.S. Constitution with a Bill of Rights that prohibited the federal government from interfering with crucial individual freedoms, including the freedoms of speech, assembly, and petition, protection from unreasonable searches and seizures, and the right to due process in criminal trials.
As Franklin Delano Roosevelt once keenly observed, "the Bill of Rights was put into the Constitution not only to protect minorities against intolerance of majorities, but to protect majorities against the enthronement of minorities." The Public Papers and Addresses of Franklin D. Roosevelt 366 (1941). (1). “Finding” Corporations in the First Amendment The First Amendment to the U.S. Constitution declares, in part, that governments shall “make no law. . . abridging the freedom of speech.” U.S. CONST. amend. I
In First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), the Supreme Court “found” corporations in the First Amendment when the Court threw out a Massachusetts law that prohibited corporations from spending money to influence legislation unrelated to their business. The ruling nullified the laws of thirty states that had adopted similar legislation.
Dissenting in Bellotti, Justice White described the impact of this decision:
It has long been recognized, however, that the special status of corporations has placed them in a position to control vast amounts of economic power which may, if not regulated, dominate not only the economy but also the very heart of our democracy, the electoral process . . . . The State need not permit its own creation to consume it.
Bellotti, 435 U.S. at 809 (White, J., dissenting).
Courts since Bellotti have explored the contorted metes and bounds of political , commercial and negative corporate speech rights without revealing why or how the Constitution compels the conclusion that corporations must be empowered by the First Amendment. They have also avoided any discussion of how the exercise of those rights by corporations negates the ability of people to exercise their own First Amendment rights – thus preventing people from using their own free speech to secure their inalienable rights to life and liberty.
In addition, Courts have avoided the interrelated discussion of how the conferral of First Amendment rights upon corporations involuntarily subjects the majority to the blunt force of the speech of the corporate minority – enabled through the massive wealth of corporations – thus nullifying the fundamental guarantee of a republican form of government.
(2). “Finding” Corporations in the Fourth Amendment The Fourth Amendment to the U.S. Constitution declares that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. CONST. amend. IV.
The Supreme Court “found” corporations in the Fourth Amendment in Hale v. Henkel, 201 U.S. 43 (1906). There, the Court nullified a grand jury subpoena issued under the Sherman Anti-Trust Act during an investigation into unlawful trade and price fixing actions of tobacco corporations. The subpoena ordered those corporations to produce documents. The Court quashed the subpoena, ruling that it constituted an “unreasonable search and seizure” of the corporations in violation of the guarantees of the Fourth Amendment.
As with its First Amendment decisions, the Supreme Court - in this case and subsequent cases - has collaterally focused on the definition of “unreasonable search” rather than explaining why corporations should be constitutionally shielded from inspections and other searches that seek to protect the health, safety, and welfare of the people. The Courts have also not explored how granting Fourth Amendment rights to corporations subverts republican government by enabling a corporate minority to unilaterally exempt corporations from laws adopted by the majority.
(3). “Finding” Corporations in the Fifth Amendment The Fifth Amendment to the U.S. Constitution declares, in part, that no person shall be “subject for the same offence to be twice put in jeopardy of life or limb. . . nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” U.S. CONST. amend. V.
The Supreme Court “found” corporations in the Fifth Amendment’s Due Process Clause in Noble v. Union River Logging R. Co., 147 U.S. 165 (1893), in which the Court ruled that the grant of a public land right-of-way to a railroad corporation by the Secretary of the Interior could not be revoked by a subsequent Secretary without extending due process of law to the corporation. The Court “found” corporations in the Takings Clause in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), in which the Court ruled that coal corporations must be compensated for property value lost due to laws protecting homes from mine subsidence. The Court “found” corporations in the Double Jeopardy Clause in Fong Foo v. United States, 369 U.S. 141 (1962), in which the Court ruled that a corporation could not be retried after a court directed a judgment of acquittal during the presentation of evidence by the government.
Courts have, however, avoided any discussion of how the exercise of judicially conferred Fifth Amendment rights by corporations prevents people from governing to protect their health, safety, and welfare. Courts have also avoided any discussion of how the use of Fifth Amendment protections by corporations enables the corporate minority to evade legislative measures adopted by the majority to secure those interests – an entitlement that negates the people’s right to a republican form of government.
(4). “Finding” Corporations in the Contracts and Commerce Clauses The Contracts Clause of the Constitution states that "No state shall . . . pass any . . . law impairing the obligation of contracts." (Const. Art. I, § 10.) In Trustees of Dartmouth College v. Woodward in 1816, the U.S. Supreme Court used the Contracts Clause to prevent the people of New Hampshire from turning private Dartmouth College into a public university. The citizens of New Hampshire had decided that public universities were a prerequisite to maintaining a republican form of government, and the New Hampshire Supreme Court had vindicated the people’s authority to transform the College.
The Commerce Clause states that "The Congress shall have power . . . to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." (Const. Art. I, § 8.) The Supreme Court has concocted, within the Commerce Clause, a "Dormant Commerce Clause" that enables corporations to use the Courts to overturn state laws adopted to protect the health, safety, and welfare of people and communities. As demonstrated in the second part of this Brief, the Commerce and Contracts Clauses are regular weapons in the arsenal of corporate constitutional rights, wielded by corporations through the Courts, to deny the inalienable rights of people to life, liberty, and property.
Courts have avoided any discussion of how Commerce and Contracts rights, wielded by corporations, enable corporate managers to strike down laws fashioned by the majority – thus negating the Constitutional guarantee of a republican government.
IV. Corporations Illegitimately Wielding Constitutional Rights of Persons Against People and Communities Regularly Deny the People Their Inalienable Rights, Including Their Right to a Republican Form of Government.
As explained by at least one commentator, describing the fundamental
principles that anchor republican governments:
[i]f all men are by nature perfectly free and equal, there can then be no claim grounded in nature of one to rule another. . . . As a statement of right, then, the principle is a universal: all forms of government derive their legitimacy from the consent of the governed; all forms of government claiming legitimacy are subject to the master principle of popular sovereignty and hence are accountable to the governed for the faithful performance of their charge.
The judicial “finding” of corporations in the Constitution constitutes a long train of usurpations of the people's inalienable rights, including the people’s right to be free - as a majority - from governance by a corporate minority. That bestowal of “corporate rights” comes at a clear cost to people. As at least one commentator has noted, “the extension of corporation constitutional rights is a zero-sum game that diminishes the rights and powers of real individuals.”
Thus, Fourth Amendment rights conferred upon corporations deny people access to information and the ability to protect their health, welfare, and safety; the bestowal of First Amendment rights upon corporations denies people’s access to information to frame questions, and participate in public debates and elections; the bestowal of equal protection rights upon corporations prevents people from treating corporations as subordinate entities. Cumulatively, the judicial conferral of rights inherently denies the people their ability to govern themselves.
The cases outlined below show that such assessments are not ivory tower academic theories, but frightening reality. It is clear that “finding” corporations within the Constitution has come only at the expense of nature, communities, democracy, and the health, safety, and welfare of people. It has also wrested the authority to govern from the majority, and vested it in a distinct corporate minority – thus violating the Constitutional guarantee of a republican form of government.
A. Corporate Personhood and the Denial of People’s Inalienable Rights
After people of the United States worked to eliminate slavery and drove the adoption of the Fourteenth Amendment, the federal government passed civil rights legislation to empower African Americans to protect their Amendment rights from infringement by state governments. Today, the Civil Rights Act of 1964 is a direct descendant of the original Civil Rights Acts of 1866 and 1871. Section 1983 of the 1964 legislation provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress (emphasis added).
Because §1983 is an exercise of Congress' power to enforce §1 of the Fourteenth Amendment, "persons" protected by §1983 are the same "persons" decreed by the Courts to be protected by the Fourteenth Amendment. Along with establishing liability, §1988 of the statute allows the recovery of attorneys’ fees and costs, to be awarded to the “person” who was the subject of the discrimination.
Thus, corporations, by virtue of their judicially conferred “personhood,” wield the Civil Rights Act in unison with the Due Process and Equal Protection provisions of the Fourteenth Amendment to overturn laws and punish elected officials with the payment of attorneys’ fees incurred by the corporations. The story of how cell phone provider Omnipoint Communications Corporation forced its way into several communities over the past decade is illustrative of how corporations routinely use Fourteenth Amendment rights to deny the right of people and communities to protect their health and safety.
Omnipoint Corporation is engaged in the business of providing digital telephone service by constructing antennae for transmitting radio signals between cellular telephones and ordinary telephone lines. The radio signals are a low-intensity form of radiofrequency (RF) electromagnetic radiation.
There exists a large body of evidence that the radiation emissions from those lines are harmful. A neuropsychiatrist testifying before a zoning and planning committee in 1991 explained:
There has been a steady stream of reports of possible health risks associated with exposure to electromagnetic fields and MW/Rf (microwave/ radiofrequency) radiation from power substations, high voltage lines and microwave towers. Most frightening of these are the possible increases in the risk of cancer and childhood leukemia.
. . . . In summary, we feel that cellular biology, animal and human studies show that MW/RF exposure presents a health risk at the power levels of the proposed antenna and even at the power levels of the existing antenna . . . . Increased numbers of cancers have been found in populations exposed to less radiation than we are receiving now . . . . Our review of the literature on MW/RF exposure has led us to the sobering conclusion that living in close proximity to a source such as the proposed NYNEX/Newton antenna on Waban Hill will increase the risk to ourselves and to our children of developing cancer.
In 1998, the Corporation sought to construct a cellular telephone tower in Chadds Ford Township in eastern Pennsylvania. Because the municipality's zoning ordinance provided no place for cell towers, the Corporation filed a variance application to force its cell tower into the municipality. Taking the community’s concerns about health and safety seriously, the municipal government denied the Corporation’s application on May 26, 1998. Municipal officials believed that their exercise of police power, to protect the community, was based on solid constitutional doctrine. Several Courts have held that such an exercise of police power is intimately linked to the preservation of people’s inalienable rights. Supreme Court Justice Gray has likened such an exercise of the municipality’s police power to the preservation of the rights guaranteed by the Declaration of Independence and the Fourteenth Amendment:
The police power includes all measures for the protection of the life, the health, the property and the welfare of the inhabitants, and for the promotion of good order and the public morals. It covers the suppression of nuisances, whether injurious to the public health, like unwholesome trades, or to the public morals, like gambling houses and lottery tickets.
This power, being essential to the maintenance of the authority of local government, and to the safety and welfare of the people, is inalienable. As was said by Chief Justice Waite, referring to earlier decisions to the same effect, "No legislature can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants. The supervision of both these subjects of governmental power is continuing in its nature, and they are to be dealt with as the special exigencies of the moment may require. Government is organized with a view to their preservation, and cannot divest itself of the power to provide for them. (citations omitted).
Courts have specifically recognized the role of a plenary police power to defend individual rights guaranteed under the Fourteenth Amendment and other constitutional provisions. Courts uniformly agree that the police power cannot be bargained away.
The Omnipoint Corporation responded to the municipality’s denial by suing Chadds Ford Township under the federal Telecommunications Act of 1996 (TCA) and § 1983 of the Civil Rights Act. Section 704 of the TCA - which cellular phone corporations influenced by wielding First Amendment rights - included a provision that outlawed control by local government over the "placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions." The law thus compelled elected and appointed officials to trump the decisions of communities in favor of the private interests of telecommunications corporations.
Using that section of the Act, the Federal District Court for the Eastern District of Pennsylvania ruled that Chadds Ford Township had violated the law, and that the actions of the Township had deprived the Corporation of its civil rights under §1983. The Court then ordered the Township to pay the Corporation’s attorneys' fees. Omnipoint Communications Enterprises L.P. v. Zoning Hearing Board of Chadds Ford Township, No. Civ. A. 98-3299, 1998 WL 764762 (E.D. Pa. Oct. 28, 1998).
After successfully forcing its cell tower into Chadds Ford Township by harnessing the federal Court, Omnipoint Corporation officials marched to the town of Wellfleet on Cape Cod Bay in Massachusetts. There, citizens had organized the Wellfleet Action Group to oppose installation of the Corporation’s cell tower in the steeple of the First Congregational Church, which sat in the middle of town. Human health concerns motivated democratic opposition to the installation. Wellfleet residents elected citizen Margo KochRuthe specifically to vote against the installation, and the Town denied the Corporation’s request to site the cell tower.
The Corporation then used the Chadds Ford Township decision to threaten the Town with a lawsuit if the Planning Board did not reverse its decision. Citizens of Wellfleet responded by petitioning the Planning Board to amend its zoning laws to require 1,500 feet setbacks for cell towers, which would have forced the Corporation to locate its tower outside town. After meeting with lawyers for the Town and the Corporation behind closed doors, the Planning Board reversed itself and declined to amend the zoning laws for the Town.
Town selectman Dale Donovan described the result of the Corporation’s wielding of judicially granted constitutional rights:
Our legal counsel said, "You're dead in the water on this one." How much of the people's money can we spend to defend something? Omnipoint's use of the civil rights threat definitely influenced us. Then you get into serious penalties. The term 'civil liberties' has broadened so dramatically. You're a corporation! You have property rights, but that's not what civil rights laws are for.
Other citizens of Wellfleet were equally bitter in their assessment. Lynn Hiller, a member of the Wellfleet Action Group and former official of the National Institutes of Health, declared, “we learned that corporations like Omnipoint, engorged with constitutional rights granted by the Courts, now govern our communities. When the dust settled, we were no longer citizens of Wellfleet or of this nation. We were not persons under the law. Any remnants of democracy had been destroyed by the corporations and the courts."
By reading the Constitution to mandate inclusion of corporations in the Fourteenth Amendment, the judiciary has subverted the clear meaning of that people-driven Amendment. Its use by corporations – like the Omnipoint Corporation – reveals that instead of being used to protect and secure individual rights, the Amendment is now wielded - under the authority and protection of the Courts - to deny the rights of people to protect their health, safety, and welfare. In the process, the use of the Amendment by the corporate minority automatically negates the federal guarantee of a republican form of government – a democratic form in which a minority is necessarily prevented from governing the majority.
Justice Black, in his dissent in Adamson v. People of the State of California, 332 U.S. 46 (1947), summarized the history of judicial activism surrounding the Fourteenth Amendment:
It was aimed at restraining and checking the powers of wealth and privilege. It was to be a charter of liberty for human rights against property rights. The transformation has been rapid and complete. It operates today to protect the rights of property to the detriment of the rights of man. It has become the Magna Charta of accumulated and organized capital.
Id. at 85 (quoting Charles Wallace Collins, THE FOURTEENTH AMENDMENT AND THE STATES 137 (1912)).
B. Corporate First Amendment Rights and the Denial of People’s Inalienable Rights.
International Dairy Foods Association v. Amestoy, 92 F.3d 67 (2nd Cir. 1996) illustrates how corporations – after being “found” in the First Amendment by the courts – now wield those constitutional protections to prevent communities from protecting their health, safety, and welfare.
Amestoy involved Monsanto Corporation’s Bovine Somatrotropin (rBST or rBGH), a synthetic growth hormone developed by the Corporation for injection into dairy cows. A substantial body of evidence exists that the use of rBGH in dairy cows causes harm both to the cows and the humans that drink the milk. Jack Kittredge in "Bovine Growth Hormone" says:
A study by a scientist at the University of Illinois in Chicago in 1996 suggested that IGF-1 in the milk of rBGH-treated cows may well promote cancer of the breast and colon in humans who drink such milk.
. . .
A study of U.S. women reported on May 9, 1998, in the British journal Lancet found a sevenfold increased risk of breast cancer among premenopausal women younger than age 51 with high levels of IGF-1 in their blood. A study reported in Science in January 1988 found a fourfold increase in risk of prostate cancer among men with the highest levels of IGF-1 in their blood.
Many people fear that rBST causes human health problems, especially since there is no long-term experience with the synthetic hormone. Others want to avoid using synethetic food products. Still others know that rBST has caused health problems in cows, and worry that small farmers suffer when rBST drives low milk prices even lower. Responding to some of those concerns - and acting within the constitutional constraints imposed by judicially conferred corporate “rights” - Vermont legislators passed a law in April 1994 requiring products made with rBST to be labeled.
Six nonprofit corporations, all created, funded, and directed by dairy, grocery, and food processing corporations, then sued the State of Vermont to use the courts to vindicate corporate First Amendments rights by striking down the labeling law. They alleged that the labeling law violated their corporate members’ First Amendment rights to remain silent. Monsanto Corporation participated in the case as a friend of the court supporting the plaintiff trade associations.
On a motion for a preliminary injunction, judges in the Second Circuit Court of Appeals announced their intent to nullify the labeling law, ruling that the trade associations and the Monsanto Corporation were likely to succeed with their First Amendment claims:
Although the Court is sympathetic to the Vermont consumers who wish to know which products may derive from rBST-treated herds, their desire is insufficient to permit the State of Vermont to compel the dairy manufacturers to speak against their will. ... Accordingly, we hold that consumer curiosity alone is not a strong enough state interest to sustain the compulsion of even accurate, factual information.
Amestoy at 76, 81.
The decision forced Vermont legislators to subordinate the rights of the democratic majority to the rights asserted by the agribusiness corporations by amending state law to make rBST labeling “voluntary.” In a dissenting opinion delivered in the Amestoy case, Circuit Judge Leval described how the Second Circuit's decision trampled the basic rights of the majority:
When the citizens of a state express concerns to the legislature and the state's lawmaking bodies then pass disclosure requirements in response to those expressed concerns, it seems clear (without need for a statutory declaration of purpose) that the state is acting to vindicate the concerns expressed by its citizens, and not merely to gratify their "curiosity." Vermont need not, furthermore, take the position that rBST is harmful to require its disclosure because of potential health risks. The mere fact that it does not know whether rBST poses hazards is sufficient reason to justify disclosure by reason of unknown potential for harm. ... The milk producers' invocation of the First Amendment for the purpose of concealing their use of rBST in milk production is entitled to scant recognition. They invoke the Amendment's protection to accomplish exactly what the Amendment opposes.
Amestoy at 76, 81.
In First National Bank of Boston v. Bellotti, the Supreme Court used the First Amendment to nullify a state law banning corporate spending on political referenda. In that case, national banking associations and business corporations filed suit to overturn a Massachusetts law prohibiting them from “making contributions or expenditures to influence the outcome of a vote on any question submitted to voters.” Id. at 765. The Supreme Judicial Court of Massachusetts declared that the fundamental issue raised by the challenge was whether the First Amendment protected corporations from a law barring their involvement in the referenda process. Answering in the negative, the Massachusetts Court upheld the constitutionality of the statute.
On appeal to the United States Supreme Court, Justice Powell, writing for the majority, rephrased the question framed by both the Massachusetts Court and the Massachusetts legislature, declaring:
The court below framed the principal question in this case as whether and to what extent corporations have First Amendment rights. We believe that the court posed the wrong question. . . . The proper question therefore is not whether corporations “have” First Amendment rights, and if so, whether they are coextensive with those of natural persons. Instead, the question must be whether [the statute] abridges expression that the First Amendment was meant to protect. We hold that it does.
Id. at 776.
The Court then explained that “[i]f the speakers were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.” Id. at 777.
In Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980), the U.S. Supreme Court nullified a New York regulation – adopted by the New York Public Service Commission during the energy shortages of the 1970’s – that banned utility corporations from promoting the use of electricity. Holding that the ban unconstitutionally “suppressed speech,” the Court declared that the “commercial” speech controlled by the law was protected by First Amendment constitutional guarantees.
Thus, in Amestoy, Bellotti, and Central Hudson, the Court’s vindication of First Amendment constitutional guarantees for corporations resulted in a denial of the people’s rights. In Amestoy, the people of Vermont were denied their inalienable right to life, safety, and health as a result of being prevented from learning the contents of their food. In Bellotti, the people of Massachusetts were denied the liberty of discussing and adopting referenda without the interference of corporate spending. In Central Hudson, the people of New York were prevented from taking key steps towards adopting a sustainable energy policy in the State.
These cases placed a corporate minority in dominant positions to control the laws that could be adopted by the majority of Vermont, New York, and Massachusetts residents. As such, the judicial enabling of corporations through the conferral of First Amendment rights negated the people’s right to self-governance through a republican form of government, and created far-reaching adverse impacts on human, ecological, and economic health.
C. Corporate Privacy Rights and the Denial of People’s Rights to Safety, Security, Health, and Welfare
As a result of the judiciary “finding” corporations in the Fourth Amendment, corporations are able to prevent people from implementing and enforcing laws that prevent worker deaths, diseases, and occupational injuries.
The work of the Occupational Safety and Health Administration (OSHA) is a case-in-point. According to the National Safety Council, at least 39,300 work fatalities and 8 million work related injuries are reported annually, with 240,000 of those injuries resulting in permanent disability. In addition, leaders in the field of occupational medicine calculate that between 40,000 and 70,000 deaths annually are attributed to occupational disease, and that an additional 350,000 non-fatal occupational illness cases are reported each year.
Yet corporations have used judicially conferred privacy rights under the Fourth Amendment to prevent the Secretary of Labor from protecting workers. Marshall v. Barlow's Inc., 436 U.S. 307 (1978), involved § 8(a) of the federal Occupational Safety and Health Act of 1970, which directed the Secretary of Labor to inspect work areas for safety and health hazards. When an OSHA inspector attempted to search Barlow's Inc., an electrical and plumbing installation business in Pocatello, Idaho, in September 1975, the president of Barlow's refused to allow the inspection. The president maintained his opposition when the inspector returned three months later with a federal district court order requiring an inspection under the Act. The Corporation then turned to the courts seeking injunctive relief under the Fourth Amendment to nullify parts of the Act and prevent the inspections. Id. at 309-10.
The Supreme Court ruled that a corporation's Fourth Amendment rights make warrantless inspections unconstitutional. Id. at 315. Other courts have nullified enforcement actions against corporations based on similar assertions of “corporate rights.”
As in Hale , the judiciary’s conferral of Fourth Amendment rights onto corporations also enables corporations to shield themselves from investigations pursued by the people’s elected officials. In Federal Trade Commission v. American Tobacco Co., 264 U.S. 298 (1924), the U.S. Senate directed the Federal Trade Commission to investigate several tobacco corporations for engaging in unfair competition practices through the manipulation of tobacco prices. To carry out the directive, the Commission ordered the American Tobacco Company and P. Lorillard Company to produce corporate books and papers. The corporations refused, claiming that Fourth Amendment protections shielded them from the authority of Congress. The Federal Trade Commission brought suit to compel production of the documents.
The U.S. Supreme Court agreed with the tobacco corporations, proclaiming that it was “contrary to the first principles of justice to allow” the search, and declared that “we cannot attribute to Congress an intent to defy the Fourth Amendment or even to come so near to doing so as to raise a serious question of constitutional law.” Id. at 307 (citations omitted).
Thus, the judicial conferral of Fourth Amendment rights onto corporations denies the right of people to make inspections and conduct investigations to protect their health, safety, and welfare. In addition, by enabling corporations to nullify health and safety laws, the judiciary has severed the people’s constitutional guarantee to a form of government that protects the majority from rule by a minority.
D. Corporate Fifth Amendment Takings and the Denial of People’s Inalienable Rights
The judiciary’s conferral of constitutional rights upon corporations threatens not only the lives and safety of people, but also the health of the land, air, water, and the natural systems that support them. Asserting rights under the Takings Clause of the Fifth Amendment, corporations routinely prevent elected officials from carrying out their obligations to protect human and natural communities.
A case in point is Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 95 F.3d 1422 (9th Cir. 1996), aff'd, 526 U.S. 687 (1999). There, a Corporation wanted to develop a residential complex on 37.6 ocean-front acres in Monterey, California. Public officials - responding to their constituents and to various laws protecting human and natural communities - rejected the corporation’s application because the development would damage native flora and fauna and impact the habitat of the endangered Smith's Blue Butterfly. Id. at 1430-31.
The Corporation eventually sold the parcel of land to the state of California for $800,000 more than it paid for the property. It then turned around and sued the Town of Monterey for violating its “corporate rights” under the Takings, Equal Protection, and Due Process Clauses of the Fifth and Fourteenth Amendments of the Constitution. The court found in favor of the Corporation on the first two claims and awarded it damages of $1.45 million paid from the public treasury.
E. Corporations Wielding the Contracts and Commerce Clauses Interfere With the People’s Inalienable Right to Life, Liberty, and a Republican Form of Government
As the Omnipoint Corporation did with the Fourteenth Amendment and the Civil Rights Act, corporations have used the courts to attack laws by wielding the authority of the Commerce and Contracts Clauses. When faced with such claims of “corporate rights,” rural governments and communities are often forced to the brink of economic ruin by legal costs and fees.
In Centre County, Pennsylvania, for example, when a municipality passed a law requiring testing of sewage sludge for toxins and pathogens prior to disposal on farms and mine reclamation sites, Synagro Inc. filed a nine-count complaint against the municipality in federal court. Among other allegations, the Corporation charged Rush Township with violating the corporation's constitutional rights under the Contracts and Commerce Clauses. The Township was forced to spend thousands of taxpayer dollars to dismiss the Contracts Clause count on pretrial motions, and the Commerce Clause allegation survived pretrial motions to be tried on the merits.
Laws to protect farmers, farmland, and people who eat have recently become a focus of challenges by corporations seeking to eliminate family farmer competitors and other constraints on the “corporatization” of agriculture. According to the United States Department of Agriculture, four corporations now control over 60% of pork production and over 75% of beef production in these United States. While corporations have been concentrating their ownership and control of livestock production, they have eliminated over 300,000 farmers in the last twenty years. Many believe that the transformation of farming in these United States was part of a structural readjustment envisioned by corporate managers and agricultural agency officials to concentrate corporate control over agriculture by removing family farm competitors.
In 1975, the people of Iowa took action to protect family farmers and the communities dependent upon them. Iowan farmers, who had long lead the country in hog production, were threatened by the plans of giant meatpacking corporations to integrate hog production and processing. To protect open and competitive markets for family farmers, Iowans passed a law making it illegal for a pork processing corporation to own and raise hogs in the state. The people of Iowa amended the law many times over the years to counter corporate efforts to evade the spirit of the law through creative financial arrangements. The legislature's votes on some amendments were unanimous.
Iowa's packer ban law stated that its purpose was "to preserve free and private enterprise, prevent monopoly, and protect consumers," Smithfield Foods, Inc., No. 4:02-cv-90324, p. 5n.3. Reflecting the fears of Iowa farmers, Iowa officials feared that "in controlling production, corporations like Smithfield can also control prices, both of the packaged meat and of live animals," causing “higher prices at the store and lower prices for Iowa producers who raise the animals."
The public record reveals that Iowa's packer ban was an effort by a cross-section of Iowans to protect themselves from the economic and environmental harms posed by the vertical integration and horizontal concentration of hog production. Farming organizations, including the Iowa Farm Bureau, Iowa Pork Producers, and the Iowa Farmers Union, joined community organizations such as Iowa Citizens for Community Improvement to support the ban. As Gordon Allen, an assistant Iowa attorney general, explained, "the Iowa Legislature wanted to make sure livestock producers didn't face unfair competition from a packer that owned its own livestock." Iowan U.S. Senator Tom Harkin reflected the belief of the majority "that livestock production in our state should be in the hands of independent producers."
The packer ban, then, was a democratic exercise of the state's police power, which the Supreme Court described in Thurlow v. Massachusetts, 46 U.S. 504, 589-90 (1847), as an act of self-preservation:
The acknowledged police power of a State. . .is a power essential to self-preservation, and exists, necessarily, in every organized community. It is, indeed, the law of nature, and is possessed by man in his individual capacity. He may resist that which does him harm, whether he be assailed by an assassin, or approached by poison. And it is the settled construction of every regulation of commerce, that, under the sanction of its general laws, no person can introduce into a community malignant diseases, or any thing which contaminates its morals, or endangers its safety. And this is an acknowledged principle applicable to all general regulations. Individuals in the enjoyment of their own rights must be careful not to injure the rights of others. From the explosive nature of gunpowder, a city may exclude it. Now this is an article of commerce, and is not known to carry infectious disease; yet, to guard against a contingent injury, a city may prohibit its introduction. These exceptions are always implied in commercial regulations, where the general government is admitted to have the exclusive power. They are not regulations of commerce, but acts of self-preservation. And although they affect commerce to some extent, yet such effect is the result of the exercise of an undoubted power in the State.
Responding to the actions of the majority in Iowa, Smithfield Foods Corporation joined Murphy Farms LLC and Prestage-Stoecker Farms, Inc. to sue the State of Iowa in federal court to nullify the packer ban. The Corporations argued that the ban violated their rights under the Commerce Clause of the U.S. Constitution. The federal district court adopted Smithfield Corporation’s Commerce Clause argument and nullified the law. Smithfield Foods. Inc., No. 4:02-cv-90324, p. 17.
Agribusiness corporations, wielding judicially conferred Commerce Clause rights, have also used the courts to strike down other efforts by communities to resist the corporatization of agriculture. On August 19, 2003, the federal 8th Circuit Court of Appeals nullified a state constitutional amendment adopted in 1998 by citizens of South Dakota that banned non-family owned agribusiness corporations from owning farmland or engaging in farming. Agribusiness corporations, the American Farm Bureau Federation, and other agribusiness interests had sued to overturn the law, alleging that it violated the “dormant” Commerce Clause. After finding that the language of the law passed Commerce Clause scrutiny, the Court proceeded to nullify the law, contending that the intent of the circulators of the referenda to eliminate corporations from agriculture violated the Commerce Clause.
The conferral of rights by the judiciary upon corporations through the Contracts and Commerce Clauses has thus enabled corporations to wield those rights to eliminate the people’s ability to make laws to protect their health, safety, and welfare. In addition to denying those fundamental and inalienable rights, the bestowal of “corporate rights” enables corporations - as a minority - to dictate law to a majority, thus violating the people’s right to a republican form of government.
V. This Court Must Dismiss All Constitutional Claims Brought by [X] Corporation Against [Y] Government Because the Assertion and Validation of Those Rights Denies the People’s Inalienable Rights, Including Their Right to a Republican Form of Government.
The small selection of examples explored in this Brief confirm Supreme Court Justice Felix Frankfurter’s conclusion that the history of constitutional law is “the history of the impact of the modern corporation upon the American scene.”
These examples also demonstrate that the judicial conferral of constitutional protections upon corporations - protections that are then used to deny people’s rights - is utterly contrary to this nation’s framework of governance. Corporations, as subordinate, public entities, lack any authority to suppress people’s rights and inflict ongoing harms. It is equally clear that the judiciary lacks the authority to bestow constitutional rights upon them.
The judicial “finding” of corporate constitutional rights forces corporate rights into the lawmaking process itself, thereby inhibiting elected officials and chilling public debate. Thus, the judicial enablement of corporations enters federal, state, and municipal legislative Chambers.
Certainly, the courts do not lack the authority - nor the responsibility - to halt these usurpations, thus vindicating the people’s right to a republican form of government. In In Re Debs, 158 U.S. 564, 582 (1895), the Supreme Court declared:
The entire strength of the nation may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights intrusted by the Constitution to its care. The strong arm of the national government may be put forth to brush away all obstructions to the freedom of interstate commerce or the transportation of the mails. If the emergency arises, the army of the nation, and all its militia, are at the service of the nation, to compel obedience to its laws.
In this case, this Court must recognize that the corporation lacks the authority to assert constitutional claims against one of the people’s duly established governments. This Court has the responsibility to do no less. Therefore, this Court should dismiss the constitutional claims asserted by [X] corporation. To do otherwise continues to validate and affirm legal principles utterly contrary to those upon which this nation was founded.
For the reasons outlined in this Brief, amici urge this Court to dismiss the constitutional claims of [X] corporation.
Submitted this _____Day of ______, 2003.
Thomas Alan Linzey, Esq.
Daniel E. Brannen, Jr., Of Counsel
Community Environmental Legal Defense Fund, Inc.
2859 Scotland Road
Chambersburg, Pennsylvania 17201
Counsel for Amici Curiae Community Environmental
Legal Defense Fund, Inc. and The Program
On Corporations, Law, and Democracy
Richard L. Grossman, pro se
Milton Mills, New Hampshire 03852
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