November 2000
By What Authority
Will of the People?
Consent of the Governed? Rule of Law?
Richard Grossman (November 2000)
On November 8, the presidential election campaign moved into its surprise educational phase. Local, state and federal authorities have been duking it out ever since. Legislative, judicial and executive branches have been at sixes and sevens. Even obscure state constitutional offices like attorney general and secretary of state have been forced into the spotlight.
Phrases such as: will of the people, consent of the governed, rule of law are rippling off the lips of candidates, newscasters and experts galore. Now that people are actually reading state and federal constitutions, and paying attention to basic governance matters growing numbers of people are wondering if our great national ideals match reality.
A little history wouldn't hurt.
When the Constitution was ratified, the landed minority kept the majority of people from voting and holding office. These Federalist founders defined great numbers of human persons as property, without human rights. They believed that decisions about economic and foreign policy were only for the wealthy landowners and commercial class. So they concentrated authority in a powerful central government designed to restrict the will of the people. They gave the final say about governing to an appointed Supreme Court.
Called upon to resolve disputes between two parties, Supreme Court justices regularly rewrite the Constitution. For example, they have bestowed upon property organized in corporate form, the rights of legal persons: First amendment free speech, Fifth amendment due process, Fourteenth amendment equal protection. They authorized corporations to overpower the will of the people.
Despite plain language of the First Amendment, judges have sent people to jail for opposing legalized segregation and war; for resisting legalized corporate assaults upon public health and the environment; for exercising labor and human rights. At the same time legislative, judicial and executive branches have entitled corporate managers to deny workers First Amendment rights of free speech and free assembly.
Legislators and judges have decreed that the economy is beyond the will of the people, that is, beyond the consent of the governed. So, no one should be surprised that the nation's money supply is set by one unelected man at the Federal Reserve Bank or that corporate decisions on investment, technology and production-such as genetic engineering of foods, production and use of toxic chemicals, siting of giant chain stores, building nuclear power plants-are regarded under law as "private property" of corporations.
Thanks to the people who wrote the Constitution and those privileged to interpret it, law defines food, public health, and the atmosphere as the private preserves of today's great corporations. And as Senator Joseph Lieberman made it clear on the campaign trail, we the people must depend on the "private sector," that is, corporations for jobs.
Corporate aggregations of patents and subsidiaries not only run our economy. They also run our society-including foreign and military policy. (Think about the lobbying, PR and "jobs" clout of the two remaining intergalactic military contracting corporations.)
Judges nullify laws that corporate operatives do not like, such as Massachusetts' selective purchasing law with Burma, Vermont's bovine growth hormone (rBGH) labeling law, New Jersey's ban on toxic wastes from other slates, Massachusetts' ban of corporate spending on state referenda.
This is what is taught in law schools, economics schools, most schools as efficient, inevitable, irreversible, efficient, just. This is what is drummed into our heads in a zillion different ways.
So much for consent of the governed and the will of the people.
What about the rule of law? Last week, Professor Paul Kahn of Yale Law School warned that "Like every faith, our national myth of law's rule can stand only so much public scrutiny... So our national civics lesson may be teaching us too much about ourselves." 2
If the rule of law is a myth, it has sure been a formidable one. The rule of law has led to the USA's bombing of other lands. It has made this country the number one arms dealer to the world. It has given away the people's airwaves to global corporations and forbidden communities to ban microwave phone towers. Via trade agreements like NAFTA, it has sold out the people's sovereign authority to global corporations. It has directed billions of taxpayer dollars to train the Colombian military to attack the Colombian people and forests.
The rule of law enables the CIA and other spy agencies to do what they want, including topple elected governments. It empowers corporations to destroy family farms, bring us electricity shortages, escalating prices, no solar energy, and global warming.
The rule of law results in poverty wages and in vast gaps between the top few percent who own most wealth and everyone else. It militarizes the Immigration and Naturalization Service while denying its human targets basic Constitutional rights. It privatizes public treasuries like water, air, seeds, and medicines. It helps corporations run the nation's disease care systems, banking systems, forest systems, information systems, transportation systems... ad nauseam.
And so we come to the bottom line: Is the education coming out of the presidential election too much of a burden?
Are we the people afraid of too much truth?
Or has our appetite been whetted for a rule of law determined, at last, by consent of the governed?
Co-director, Program on Corporations,
Law and Democracy (POCLAD), P.O. Box 246, South Yarmouth MA 02664-0246.
Phone (508) 398-1145; Fax: 508.398.1146; E-mail: people@poclad.org.
Akron Beacon Journal, 11.27.00
So, Who Makes the Law?
Supreme Court, writing law, not simply interpreting it?
Richard Grossman (November 2000)
Signs outside the Florida Supreme Court at its first post-election ruling on the manual ballot recount declared: Supreme Court: Interpret Law, Don't Make Law'', And: "Supreme Court: Butt Out!" In his comments on the decision, George W. Bush said that the court had used legal language to conceal that it was writing law, not simply interpreting it.
With local, state and federal courts now in the national spotlight, people may find it helpful to know that judges (mostly appointed, not elected) have been making law for generations and generations.
But judicial supremacy did not come from God or Mother Nature - consider that the Articles of Confederation had no provision for a Supreme Court. And when debate broke out over the replacement constitution drafted in Philadelphia, the idea of judicial supremacy provoked intense opposition.
Robert Yates of New York noted, "The opinions of the supreme court, whatever they may be, will have the force of law; because there is not power provided in the constitution, that can correct their errors, or controul their adjudications."2 John De Witt of Massachusetts observed: "There are no well-defined limits of the Judiciary Powers, they seem to be left as a boundless ocean..."3
The US and state supreme courts were created by men of property to protect themselves from democracy. And so today when judges confirm laws that establish special privilege; nullify laws that challenge special privilege; and amend state and federal constitutions to deny people's fundamental rights, they are doing what the antidemocratic Federalist Founders intended.
From thousands of rulings, here are a few samples of judges validating laws, nullifying laws, and amending constitutions.
US Supreme Court
Santa Clara County v Southern Pacific Railroad Corp., 1886: decreed without hearing argument or offering an explanation that a corporation is a person for the purposes of the Fourteenth Amendment.
Chicago, Milwaukee & St. Paul Railway Co., v Minnesota, 1890: voided a Minnesota law enabling state elected officials to set railroad rates, declaring that all rates decided by elected officials are subject to judicial authority.
In Re Debs, 1895: uphold judge-made labor injunctions banning strikers from picketing, holding meetings, conferring with union officers, publishing articles or in any way seeking public support. It also sent Debs and three other leaders of the National Railway Union to jail for violating such an injunction.
Pollock v Farmers Loan and Trust Co., 1895: nullified Congress' income tax law of 1894, which had imposed a 2% tax on incomes over $4,000.
Charles Smith v Mississippi, 1896: affirmed the authority of lower courts to exclude African Americans from juries.
Schenck v US, 1918: sent Schenck to jail because, in the words of Justice Holmes rewriting the First Amendment, "When a nation is at war, many things that might be said in times of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no court could regard them as protected by any constitutional rights."
Lochner v NY, 1905: nullified a New York law setting 10 hours as maximum labor per day for bakers.
Virginia Board of Pharmacy v Va Citizens' Consumer Council Inc., 1976: protected corporate commercial speech under the First Amendment.
First National Bank of Boston v. Bellotti, 1976: nullified a Massachusetts law banning corporate spending in referenda and initiatives which corporations had an interest.
NJ v City of Philadelphia, 1976: nullified a New Jersey law banning toxic wastes from other states.
Federal judges in general:
Gasaway v. Borderland Coal Corporation, 1921: upheld a lower court injunction against the United Mine Workers in West Virginia forbidding union speeches, union publishing, appeals to unemployed men to join the union, the use of union funds for unionizing non-union mines.
United States v Anthony, 1873: US Circuit Court found that the Fifth Amendment did not allow women the right to vote. It directed a jury to find Susan B. Anthony guilty of illegal voting.
State supreme courts
Pierce v Stablemen's Union, 1909: the California Supreme Court affirmed a court injunction against strikers picketing peacefully.
Commonwealth v Perry, 1891: the Massachusetts Supreme Court nullified state law prohibiting an employer from fining an employee or withholding wages.
Frorer v People, 1892: the Illinois Supreme Court nullified a state law prohibiting corporations from paying wages in goods or merchandise instead of money.
Neither Gore nor Bush talked about reversing this sad history of judicial usurpation. So while we may not know the winner of the presidential election, we can harbor no doubts about the loser: democracy. *
You can read all about this judicial usurpation. Here are some resources: Lawless Judges, by Louis P. Goldberg and Eleanore Levenson, NY: The Rand School Press, 1935; The Supreme Court and the National Will, by Dean Alfange, Garden City: Doubleday, Doran & Co., 1937; Conservative Crisis and the Rule of Law: Attitudes of Bar and Bench, 1887-1985, by Arnold Paul, Gloucester: Peter Smith, 1976; Lawyers and the Constitution: How Laissez Faire Came to the Supreme Court, by Benjamin Twiss, Princeton: 1942.
Co-director, Program on Corporations,
Law and Democracy (POCLAD), P.O. Box 246, South Yarmouth MA 02664-0246.
Phone (508) 398-1145; Fax: 508.398.1146; E-mail: people@poclad.org.
Cecelia M. Kenyon, editor, The Anti-federalists, Indianapolis
Bobbs-Merrill Company, Inc., 1996, page 335
Ibid, pp. 104-5