Sunday, March 25, 2012

By What Authority

The Pink Oleo Saga

Why So Many Good State Laws Are "Unconstitutional" (and What We Should Do About It)

© 2008 Jane Anne Morris

This article is adapted from Gaveling Down the Rabble: How "Free Trade" Is Stealing Our Democracy, Apex Press (POCLAD Books), 2008.
What's pink, French, and unconstitutional?
Hint: The story of this early "frankenfood" provides an advance script for the current global "free trade" frenzy. Over a century ago, its introduction was an occasion for greasing the skids toward establishing a U.S. "free trade" zone, one that is as devastating to local democracy as the WTO and NAFTA are to national sovereignty.
Why would the Supreme Court throw out state laws requiring oleomargarine to be colored pink? Why would state legislators pass such seemingly silly laws to begin with?
Why are provisions that protect citizens against fraud, safeguard their health, and protect local industry unconstitutional in the eyes of the Supreme Court? A recent example applies to corporate agriculture. A South Dakota constitutional amendment passed by 59% in 1998 prohibited most corporate ownership of land used for agriculture. In 2004, the U.S. Supreme Court effectively threw it out. Nebraska's even stronger anti-corporate agriculture constitutional amendment, first passed in 1982, was ruled unconstitutional in 2006 by a lower federal court citing the South Dakota case.1 Why do such measures garner the dreaded unconstitutional label?
Probably for the same reason that has stood for over a century: they interfere with the care and feeding of large corporations. They challenge the Supreme Court's policy, evident since at least the 1870s, of nurturing and protecting corporations against the very states that created them. After corporate lawyers do the research and outline possible arguments, the Court has only to cut-and-paste a decision.
The myth that the Supreme Court began its turn toward "business interests" only since the early Nader years (as claimed by Jeffrey Rosen in the recent "Supreme Court, Inc." in the March 16, 2008 New York Times Magazine) ignores the long history that fills the pages of Gaveling Down the Rabble.

Commerce Clause to the Rescue

But even the Supreme Court needs to point to something in the Constitution that justifies its consistent pro-corporate decisions. The handy constitutional clause that has become a favorite is the domestic version of international "trade barrier" language: the commerce clause of the U.S. Constitution.
"The Congress shall have power... to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." [Article I, section 8, clause 3]
The late-nineteenth century Pink Oleo saga provides a perfect example for a quickie workshop on how the Supreme Court uses "free trade" to get rid of good state laws.
After the mid-nineteenth century, more than one inventor around the world sought to turn slaughterhouse offal into something that people could be convinced to eat. If it had a long shelf life and was cheap to make, all the better. The successful solution came from Frenchman Hippolyte M ge-Mouri S, who obtained a U.S. patent for oleomargarine in 1873. Its commercial potential was quickly appreciated, as Mark Twain captured in a chapter of Life On the Mississippi written in 1883. The gleeful conversation takes place between two businessmen on a riverboat.
"You can't tell it from butter; by George, even an expert can't!... We're going to have that entire trade... You are going to see the day, pretty soon, when you can't find an ounce of butter to bless yourself with... we can sell it so dirt-cheap that the whole country has got to take it... There's more money in oleomargarine than why, you can't imagine the business we do." [emphasis in original]
Oleomargarine's introduction into a nation long accustomed to the joys of udder butter churned up controversy. The "Oleo Wars" that ensued pitted state legislators against the growing power of meatpacking corporations. Corporate efforts to put oleomargarine in the nation's pantries tell the archetypal story; at issue was whether state and local governments would determine their own laws, or have terms dictated to them by distant corporations.
The original oleomargarine was made not from vegetable oils (as it is today) but from slaughterhouse by products subjected to industrial processes in a factory. Mere inspection of a firkin of manufactured oleomargarine could not determine whether it had been made from inferior, doctored, or even dangerous ingredients. To add insult to possible injury, sometimes this easily adulterated industrial food product was fraudulently sold as real dairy butter. In addition, many feared that competition from oleomargarine would threaten the growing dairy industry. Health, consumer protection, and economic concerns were closely intertwined.
In response to citizen concerns, state legislatures started passing laws against oleomargarine. At the time, protectionist measures of this ilk were nothing out of the ordinary. In 1884, the New York state legislature prohibited the sale or manufacture of oleomargarine. In 1885, Pennsylvania followed suit. These and other overtly protectionist acts reflected the people's will to use their imperfect representative democracies to keep out a product they feared would endanger them.
Manufacturers and purveyors of oleomargarine as a cheap butter substitute (and source of profits) were not pleased at this legislative attention. A variety of laws and a matching variety of corporate challenges evolved into a cat-and-mouse game between legislature and court ostensibly over artificial butter. Pennsylvania's outright ban on oleomargarine was an early target.
On the same day that the 1885 Pennsylvania law was passed, a Harrisburg grocer (Powell) was arrested for selling oleomargarine. Lawyers representing corporations that manufactured and sold oleomargarine argued on his behalf that their product was clean, pure, and yummy, and that the right to make and sell it was covered by the Constitution. On the other side, defenders of the Pennsylvania ban argued that its intent to protect health and prevent fraud made it a legitimate exercise of a state's "police power," the legal term for the power to pass whatever laws are necessary and appropriate to protect its citizens.

State Courts Upheld Rights of Legislatures to Protect People

A Pennsylvania court found the ban to be well within legislative powers. In 1888, the U.S. Supreme Court also upheld it, strongly endorsing a state's police power. The Court affirmed that protecting and preserving public health and morals was one of the main tasks of legislation, and that public policy should be determined not by courts but by legislatures. If some were dissatisfied with the legislative outcome, then appeal should be "to the legislature, or to the ballot-box, not to the judiciary."2
But "Big Oleomargarine" tried again a few years later. In 1893, a Pennsylvania resident (Schollenberger) and registered agent for a Rhode Island oleomargarine-manufacturing corporation sold a tub of oleomargarine in Pennsylvania. After the Pennsylvania Supreme Court again upheld the state's ban, the case was appealed to the U.S. Supreme Court. Meanwhile, states were also trying out a more colorful approach.
State legislatures that wanted to keep oleomargarine out of their states and there were many of them did not give up when their oleo bans were threatened by commerce clause arguments. Instead, they started to see pink as a way to regulate oleomargarine.
In 1890, the Vermont legislature prohibited the manufacture of oleomargarine in that state, and specified that it could be sold in Vermont only if colored pink. In 1891 Minnesota, West Virginia, and New Hampshire passed similar laws. Not long afterwards, an alert Minnesota oleomargarine S.W.A.T. team carried out a pantry raid and confiscated a quantity of not-pink oleomargarine that had been imported from Missouri by Armour Packing Co., a New Jersey corporation. A federal court upheld Minnesota's pink law as an appropriate use of the state's police power. Things were looking good for the "pink is beautiful" movement.
But it was not to last. Corporate lawyers challenged the "pink oleo" laws just as they had challenged the oleomargarine bans. Both the Minnesota Pink Law and the Pennsylvania Oleo Ban reached the U.S. Supreme Court in 1898.
Because only ten years earlier the U.S. Supreme Court had upheld an oleo ban as a legitimate use of a state's police power, defenders of the Pennsylvania law reiterated tried-and-true arguments about protecting and preserving public health. Little did they know that a new argument would be offered and the Supreme Court would go for it. This time, "Big Oleo" trumped arguments about state police power and public health and welfare by playing the commerce card. The oleomargarine corporation lawyers argued that the Pennsylvania oleomargarine ban was what today the WTO tribunals would call an illegal trade barrier. The U.S. Supreme Court was persuaded, and, basing its decision on the U.S. Constitution's commerce clause, the late nineteenth century analog of what today is touted as "free trade," ruled the Pennsylvania law unconstitutional.
The Supreme Court's reasoning had two steps. First, it determined that oleo was included in the "interstate commerce" category. Inclusion in this category had consequences, which were the second step. An item of interstate commerce might be regulated by a state, but could not be prohibited, said the Supreme Court. "Absolute prohibition of an unadulterated, healthy, and pure article" goes beyond the allowable use of the state police power. A state cannot prohibit the import from another state of a "lawful article of commerce," because that amounts to regulating interstate commerce, which is a power of the U.S. Congress.3
The decision took a big bite out of a state's police power. The ban that had been okay in 1888 was unconstitutional by 1898. Now, a state would have difficulty banning the import of anything that the Supreme Court could be persuaded was an article of commerce (and by the late twentieth century, this included toxic waste, air pollution, and nuclear waste, among many other things).
Pink wouldn't work either: again the high court sided with the corporations against the states. States' pink oleo laws were unconstitutional because the pinkness requirement was as much a burden on commerce as a ban. The reasoning was that if a state lacked the power to prohibit the import of something (in this case, oleomargarine), then it also lacked the power to require that the imported item be adulterated in such a way that it would be unsalable. As for example, by requiring that oleomargarine be pink... or blue or red or black (other colors mentioned by the Supreme Court)... or impregnated with an "offensive smell."4
In ruling against blue or stinky oleomargarine laws, the Supreme Court took another bite out of an already dwindling state police power. Legislatures, responding to a new situation (in this case, the appearance of a new product) acted to protect citizens against inferior products, fraud, and economic disruption. In this, they were supported by farmers and dairy corporations. So far, it sounds democratic enough, a routine use of the police power.
But then lawyers working on behalf of corporations hoping to profit from this new product challenged the states' power to take such action.5 These challenges, being constitutional in nature, brought the matter before federal courts and ultimately to the Supreme Court. In evaluating the issue and explaining their decision, the justices had exactly the kinds of discussions that must have previously occurred in state legislatures, and prior to that, on street corners and in hayfields scattered throughout the states.
They discussed the invention, composition, and manufacture of oleomargarine; methods of determining its purity; testimony from an analytical chemist; the fact that it was used by armies and navies throughout Europe; and what size and type of container it might be packaged in. The justices then gave their opinion that oleomargarine was obviously safe and widely recognized as a food item, and that butter and oleomargarine were "substantially identical." In short, they had the kind of discussion that we might want a legislature to have. But they are not legislators.

"Free Trade" Constitutionalized in Commerce Clause

Using the commerce clause, the "free trade" mantra of the time, they decided that states could not ban the manufacture, import, and sale of a substance that obviously many states wanted to ban. In other words, Supreme Court justices legislated their own opinions by declaring unconstitutional those laws they disagreed with. The Supreme Court acted as a legislature. If we step back from the Supreme Court's musings on oleomargarine chemistry and pink dye as a burden on commerce, we can see the oleomargarine rulings for what they were: direct assaults on people's power to govern themselves and shape their communities.
The language of commerce (or trade), shrouded in the gravitas of constitutionality, is a ruse to disguise a corporate elite's efforts to escape government actions taken to protect the public welfare. It has long been understood that corporate interests use the judicial lever to undo legislative deeds.
"The old fights of state against nation were largely smoke screens to hide an attempt by some private interest to invoke the aid of the Court in combating public regulation. In large measure, this is the case today." [in 1943]6
The underlying issue is not whether butter is better, or whether pink margarine is repulsive, or even whether food policy (or economic policy) should be a local, state, or national matter. The issue is who should decide public policy: the people acting through a legislature, or a handful of judges.
Courts provided a more favorable forum than did legislatures for a "rematch" between corporations and states. Commerce clause rulings exempted corporations from the concrete exercise of state and local power, while delivering them into the kinder and gentler hands of the federal judiciary. In Gaveling Down the Rabble, I show how Supreme Court Justices since the 1870s used trade barrier language based on the Constitution's commerce clause to promote the corporate agenda by invalidating state and local laws that threatened corporate power.
Like the "Oleo Wars," other controversies decided under the commerce clause amounted to corporate challenges of state and local laws, with the role of arbiter falling to the U.S. Supreme Court. Analogous struggles were played out over other staples, and in other industries, with surprisingly few variations to this day.
The transformation of the commerce clause into a wish-fulfillment machine for corporate lawyers was breathtaking. The harm to democracy done by the commerce clause "doctrine" is as damaging to democracy as the "separate but equal" doctrine was to human rights. Both deserve the same fate.
If African-American schoolchildren in unheated schoolrooms could understand "separate but equal" and in the face of horrible violence courageously demand its rejection, then today, those of us striving for justice and sustainability ought to be able to see the Supreme Court's commerce clause doctrine for the anti-democratic pro-corporate scam that it is. I can only hope that we can begin to show the same courage in working to reject it.

Corporate anthropologist Jane Anne Morris lives in Madison, Wisconsin.


  1. The Court refused to hear an appeal of a federal court's order preventing enforcement of the South Dakota measure, on grounds that included commerce (S.D. Farm Bureau v. Hazeltine (2004)). The Nebraska case was Jones v. Gale, 470 R. 3d 1261 (2006) 8th Cir. Neb.
  2. The state court case that found th e law constitutional was Powell v. Commonwealth, 114 Penn. St. 265 (1887). The U.S. Supreme Court case that upheld the ban was Powell v. Pennsylvania (1888).
  3. Schollenberger v. Pennsylvania (1898).
  4. Collins v. New Hampshire (1898). The lower federal court case that had previously upheld Minnesota's law was Armour Packing Co. v. Snyder, 84 Fed. 136 (1897).
  5. See Martha C. Howard's excellent work, The Margarine Industry in the U.S.: Its Development Under Legislative Control (Columbia Univ. dissertation, 1951).
  6. George D. Braden, "Umpire to the Federal system," 10 Univ. of Chicago Law Rev. 27 (1942-3).
  7. Fargo v. Stevens (1887); Leloup v. Port of Mobile (1888); Fargo v. Hart (1904); Ludwig v. Western Union Tel. Co. (1910); Atchison, T. & S.F. Ry. v. O'Connor (1912); Looney v. Crane Co. (1917); N. J. Bell Tel. Co. v. State Board (1930). State and local efforts to protect their economies against things like chain stores and "big box" stores continued, but tended to use more indirect means, such as zoning details or parts-per-million regulations. Corporate strategies also evolved, often using the Fourteenth Amendment's equal protection and due process clauses, or other corporate constitutional "rights," to force their way into communities.

What the Supreme Court thinks is "unconstitutional" under the commerce clause "trade barrier" doctrine.

A sampling includes:

  • laws discouraging "chain stores" from wrecking local economies
  • laws requiring food labels to include information about ingredients, place of origin or organic standards,
  • laws banning import of goods made with child labor, or under other repressive labor conditions,
  • laws favoring state residents subsistence needs (from natural gas to fish) over the desire of corporations seeking to export for profit.
  • laws requiring imported toxic waste to be pretreated and inspected,
  • laws requiring country-of-origin labels on meat,
  • state constitutional provisions limiting corporate agriculture,
  • laws limiting export of state water resources,
  • aws requiring a corporation to adhere to certain conditions in order to do business in your state.
For discussion of these examples and more, see Gaveling Down the Rabble.


Why Don't We Hear More About the Commerce Clause?

At state and local levels, the body politic's democratic impulses have been tightly constrained by commerce clause rivets, so that these days, we rarely hear of the commerce clause or "trade barrier" language. Two reasons explain this low profile.
First, the work has been done, the lessons learned, the precedents established. Between 1910 and 1919, for instance, the Supreme Court struck down 83 state laws under commerce. Since 1990, the number is only 13. Legislators got the message. In time, there were fewer cases heard or appealed, and fewer appeals accepted by the Supreme Court. This is the justices' way of indicating, "Been there, done that"; the domestic "free trade" zone is a fait accompli, rarely discussed, and disputed only around the edges.
Second, the grab bag of pro-corporate doctrines available to the Supreme Court is bulging with possibilities. For example, Massachusetts' selective procurement law, the so-called "Burma Law," was thrown out in lower federal courts partly on commerce arguments, but the Supreme Court chose other grounds to nix the law.
Recent mention of the commerce clause in the mainstream media has involved state laws on medical marijuana and interstate wine sales, and the fact that much federal environmental law is justified by a "nexus" link to interstate commerce. (See Gaveling's Chapter Five.)
  1. Morris counts, plus statistics from Bernard Gavit's 1932 book, The Commerce Clause.
  2. Crosby v. National Foreign Trade Council, 530 U.S. 303 (2000); NFTC v. Natsios, 181 F. 3d 38 (1st Cir., 1999); NFTC v. Baker, 26 F. Supp. 2d 287 (D. Mass., 1998).
April 2008 © jane anne morris

The Spirit of Change

by Greg Coleridge
Barack Obama was awakened during the night following his latest Democratic Party Presidential debate. Two ghosts stood before him. "We are the spirits of Samuel Adams and William Lamb."
"Who?" Obama asked in a daze, unsure if he was hallucinating from lack of sleep.
"We're the ghosts of real change."
"I am the spirit of Samuel Adams, a revolutionary for American liberty and promoter of the Declaration of Independence."
"And I am the spirit of William Lamb, a founder of the U.S. Populist movement in the 1880s-1890s, supporter of the Omaha Platform, and organizer of the People's Party."
Obama was puzzled. "You're both dressed funny, but more to the point, why are you here?"
"We've come to talk. You, Clinton, even McCain, speak constantly about 'change'. We've watched your debates, read news on your light screens, and ..."
"Light screens? Do you mean televisions and computers?"
"Ah yes, that's what you call them. Anyway, all you candidates talk about is who will bring change to this country: real change, fundamental change, policy change to address unmet needs and give citizens more power."
"Sounds especially like me," Obama said assuredly.
"We're not so sure," said the ghosts in unison. "We believe political change in our times was more profound than anything being proposed now."
And so Sam, Lamb and "Bam", advocates from three turbulent periods in U.S. history, huddled to discuss political change.
SAM: I agitated for the greatest change in the history of our nation, political independence from Great Britain. The Declaration of Independence, passed on July 4, 1776, presented a lengthy list of "repeated injuries and usurpations" by the British government and asserted that the 13 colonies were "Free and Independent States."
LAMB: Weren't you a signer?
SAM: Yes, one of 56 signers of the Second Continental Congress, a revolutionary, illegal body.
BAM: Did the British consider you and your ilk "terrorists"?
SAM: A renegade if not worse, in part for supporting the Declaration. I said in 1776, "Is not America already independent? Why not then declare it."1 The power and inspiration of the Declaration were these unequivocal assertions: "All Men are created equal and endowed by their creator with certain unalienable Rights That to secure these Rights, Governments are instituted among Men, deriving their just Powers from Consent of the Governed [and] whenever any Form of Government becomes destructive of these Ends it is the Right of the People to alter or abolish it, and to institute new Government [in fact] it is their Duty to throw off such Government, and to provide new Guards for their future Security."
The essence of the document, revolutionary then and now, was the conviction that people can and should be governing — not kings, popes or generals.
British rule could not be "reformed." The King's army and crown corporations could not be made accountable to the public. They all had to be replaced, so I worked for revolutionary change, for a system of self-rule.
LAMB: The Declaration was an inspiration to us Populists. But be honest, Sam, sixty-nine percent of the Declaration's signers held colonial office under England. Many who supported both it and the revolution were colonial lawyers, landowners and merchants, including you, who only wanted independence from Great Britain to impose their own brand of political and economic control. Following the revolution, did you not say, "In monarchy the crime of treason may admit of being pardoned or lightly punished, but the man who dares rebel against the laws of a republic ought to suffer death"?2
SAM: I did?
LAMB: Yup.
SAM: Still, I opposed the British Stamp Act, helped organize the Boston Tea Party and the Committees of Correspondence, colonists who organized into small groups to share information and mobilize the public.
LAMB: You were a great communicator, organizer and agitator Sam, but it was selective. Your instigation of mob protests was directed only at British rule and wealth, not the consolidation of power by colonial elites. This omission carried over to the Declaration, which ignored inequalities of property, and I ask, "How could people have equal rights, with stark differences in wealth?"3 The Declaration was a form of manipulation to focus anger and attention only on British rule.
BAM: While the Declaration is as inspirational as many of my speeches, there are several glaring omissions, notably independence for black slaves, women and native people. The draft of the Declaration included a grievance against the King for transporting slaves but was removed before adoption. Native people were called "the merciless Indian Savages..." and there was no room for women in "All men are created equal."
LAMB: Change during your period, Sam, was not as dramatic as during my lifetime. I helped organize the largest and most elaborate democratic mass movement in US history: Populism. It was a mass democratic insurgency among "plain people" — farmers and urban workers — to respond to the impoverishment of millions of farmers and workers by banks, railroads, and the consequences of economic and political centralization.
BAM: I haven't heard much about the Populists.
LAMB: Most people of your day haven't. We've been largely erased from history books. 0nly our "spirits" remain.
The Populists sought to create a democratic movement to counter the hierarchical culture of the day. It was "a new way of looking at society, a way of thought representing a shaking off of individual forms of deference individual self-respect and collective self-confidence class consciousness growing political sensibility the mass expression of a new political vision."4
BAM: Now I see why there's not much known in our culture about you people.
LAMB: The creation of this democratic movement for revolutionary change was achieved in sequential steps: forming organizations, recruitment, education, and political action. State farmers Alliances were the original organizing base. I organized over 100 sub-alliances in Texas alone and eventually the National Farmers Alliance. We recruited through large-scale Populist-sponsored farmers cooperatives and I was the Texas Alliance's first purchasing and traveling agent. Hundreds of newsletters and 40,000 "lecturers" were disseminated throughout Texas. We educated members continually, our version of the Committees of Correspondence, Sam. Collective political action bridging farmers and laborers was achieved through the Populist Party, which I helped launch.
SAM: This still doesn't sound very revolutionary, pal. You weren't talking about overthrowing the government.
BAM: Promoting major change through a political party is my goal, too.
LAMB: It was revolutionary, Sam, and there is a difference, Bam, between Populist goals and yours.
Populists constantly talked about "the coming revolution" through ballots not bullets. Revolution meant creating a "third party of the industrial millions" and overthrowing the two party system. We saw many elections as rigged and the electoral college as undemocratic. We tried to bring the corporate state under popular control through democratic politics.5
As fellow Populist Tom Watson said, "It's useless to ask Congress to help us, just as it was folly for our forefathers to ask for relief from the tea tax; they revolted and so should we."6
The unifying platform for Populist revolution, the "Second Declaration of Independence," was the Omaha Platform. The 4000 delegates to the first People's Party Convention in Omaha, Nebraska, adopted it on July 4, 1892 — 116 years after the first Declaration.7
SAM: Where's Nebraska?
LAMB: Later Sam. The Omaha Platform, like the Declaration, spoke to the grievances and demands for major change within the context of its time.
BAM: What did it say? Perhaps I should include elements of it in the Democratic Party platform if I'm the Presidential candidate.
LAMB: The Omaha Platform's Preamble states:
The conditions which surround us best justify our cooperation; we meet in the midst of a nation brought to the verge of moral, political, and material ruin. Corruption dominates the ballot box, the Legislatures, the Congress, and touches even the ermine of the bench. The people are demoralized; most of the States have been compelled to isolate the voters at the polling places to prevent universal intimidation and bribery. The newspapers are largely subsidized or muzzled, public opinion silenced, business prostrated, homes covered with mortgages, labor impoverished, and the land concentrating in the hands of capitalists."8
BAM: Sounds like something Dennis Kucinich would say!
LAMB: The Omaha Platform was a culmination of ideas and strategies from farmers and workers over a six-year period. Like the Declaration, it listed both grievances and fundamental prescriptions.
The platform called for abolishing the national banking system giving private banks control over money and credit; public ownership or control of the railroads, telegraph and telephone in the interests of the people; a federal graduated income tax; prohibition of alien land ownership; direct election of US Senators; the citizen initiative, referendum and recall; the secret ballot; and maybe most creatively, adoption of a "sub-treasury" system to expand currency based not on gold or silver but on agricultural products.
SAM: Still, many of these changes were "reformist." What's so radical about direct election of Senators if the Senate is part of a political system favoring a small number of elites?
LAMB: Some of our planks were less radical than others. The Progressives, those who followed the Populists, pushed for the more modest measures. Some eventually became law. Other proposals were more substantial, such as public control of banks, railroads and telephones. The goal of its financial sections, the key portions of the Platform, were radical: to transfer control of the monetary system from the nation's corporate banks and return it "in the name of the whole people," to the U.S. Treasury.9
All our demands, however, sought to shift the balance of power, economic and political, toward "plain people." These changes were as revolutionary in our time as forcing the British out of the colonies in yours.
Changes advocated by the Populists, however, transcended its political platform and cooperative buying and selling programs. The crux of Populism was creating a democratic culture. Populists attempted to build a cooperative community or commonwealth within the framework of American capitalism, one that put people at the center of the political and economic decisions affecting their lives. It became a movement culture that was understood, accepted and lived by millions of citizens.10
Progressives didn't go that far. After the Populists were defeated in 1896, those who sought change accepted the corporate state and tried merely to temper its worst abuses through the creation of "regulatory" laws and agencies. This is the political and economic model you, Bam, and others working for "change" are stuck with today.
SAM: The Populists failed in the end. It was hardly revolutionary if it didn't yield much change.
LAMB: True, we didn't win. Elements of the Omaha Platform are now law, but there is no cooperative, democratic culture. Isn't the same true of the Declaration and those who worked for true self-governance in 1776? Its essence of a government operating with the "consent of the governed" has not been realized. Today, those claiming that We the People have not only a right but a duty to revolt if unalienable rights are not secured would be called "extremists," even "terrorists" and treated accordingly.
BAM: A fundamental shortcoming of the Populists was their excluding blacks. Populist structures and members were often racist. In fact, many who call themselves "Populists" in recent times hold racist beliefs.
LAMB: That's a sad truth. The radical dream of early Alliance founders in Texas was to create an interracial farmer-labor coalition. Alliance lecturers organized many black Alliances which led to the Colored Farmers' National Alliance. Nevertheless, internal and external racism impeded social unity, economic cooperation, and electoral victory.
BAM: The change I speak of today is tied to offering real hope. I believe we can make government better, more responsive to people. We can control special interests and restore faith and trust in public officials. Hillary Clinton believes much the same. Even McCain supported campaign finance reform.
I believe we can make health care universal, increase labor and environmental provisions of NAFTA and other trade agreements, temporarily suspend home foreclosures, begin immediately to bring some troops home from Iraq, and strengthen ethics in government. This is a small part of my progressive change agenda that I can create with the support of voters. Clinton supports many of the same programs.
Other former Democratic Party candidates were even more radical. John Edwards spoke out against corporate power. Dennis Kucinich promoted a single-payer health care system, eliminating the role of insurance corporations all together, and called for undoing NAFTA.
My vision of change will be fueled if economic conditions worsen for Americans.
LAMB: Nothing you or any other Presidential candidate suggests will reduce corporate constitutional rights and powers or promote people's self-governance.
With due respect, Bam, deep change was never brought about by those in positions of power. It occurs when people act together in insurgent movements. And insurgent movements are not a function of hard times, but of insurgent cultures. Difficult times crush people. Insurgent cultures provide real hope and make possible those processes of organizing, recruiting, educating and politicizing that create and sustain change.11
BAM: How can you say this? My messages of change and hope are drawing record numbers to my campaign. People are inspired, energized, empowered.
LAMB: True. But don't mistake attraction to your campaign with behaviors necessary for a healthy democracy. As Populism declined, little stood in the way of growing political and economic concentration. Democratic aspirations were replaced by mass resignation and plenty of escape into consumerism, entertainment and drugs.
You and your message fill a void only because people of your time do not know and have never experienced an authentic insurgency movement for self-governance. Not just to end a war, expand civil rights or create environmental protections, but a movement affirming individual and collective self-confidence in seeking real political and economic democracy.
SAM: Bam, missing in your and other presidential candidates' analysis is the larger issue of how the power and authority of "We the People," as promoted in the Declaration and Preamble of the U.S. Constitution, has been usurped.
LAMB: By the wealthy class and business corporations, I might add. We need changed rules not only changed faces.
SAM: That's what I thought the Declaration tried to do in 1776.
LAMB: And the Omaha Platform 116 years later, in 1892.
BAM: Do you two realize that 116 years after 1892 is this year, 2008?
LAMB: Rather than working for the adoption of a single national declaration or platform at this time, The Program on Corporation, Law and Democracy (POCLAD) urges decentralized, participatory gatherings to study the Declaration of Independence and Omaha Platform, along with democracy campaigns and cooperative programs from current grassroots organizations. They've collected it all in a Democracy Insurgency Movement packet. This will add another seed to those already sown across the country, one that may lead to a "Third Declaration of Independence" and genuine governance by "consent of the governed."
BAM: It sounds like a dream, like my experience tonight.
LAMB: A dream? It all depends on the people and their determination to create real change.


Greg Coleridge is a POCLAD principal and works for the Northeast Ohio American Friends Service Committee.


  1. Charles A. Beard and Mary R. Beard, History of the United States, New York: The Macmillan Company, 1949, p. 140.
  2. Howard Zinn, A People's History of the United States, New York: Harper & Row Publishers, 1980, p. 94.
  3. Zinn, p. 73.
  4. Lawrence Goodwyn, The Populist Moment, A Short History of the Agrarian Revolt in America, Oxford: Oxford University Press, p. 33.
  5. Ibid, p. 124.
  6. Ibid, p. 88.
  7. Ibid, p. 277.
  8. The Omaha Platform.
  9. Goodwyn, op. cit., p. 93.
  10. Ibid., p. 164-5.
  11. Ibid., p. 61.
To order a Democracy Insurgency Movement packet, contact POCLAD at or call 508-398-1145.

Wednesday, March 21, 2012

How an Anti-Democratic, Corporate-Friendly Pennsylvania Law Has Elevated the Battle Over Fracking to a Civil Rights Fight | News & Politics | AlterNet

How an Anti-Democratic, Corporate-Friendly Pennsylvania Law Has Elevated the Battle Over Fracking to a Civil Rights Fight | News & Politics | AlterNet

How an Anti-Democratic, Corporate-Friendly Pennsylvania Law Has Elevated the Battle Over Fracking to a Civil Rights Fight

The upcoming legal fight over Pennsylvania's pro-fracking law, Act 13, pits the civil rights of people against the economic rights of corporations.
first one here
In a handful of communities in eastern states, local anti-fracking activists have been heartened by recent lower court decisions that have upheld local zoning ordinances and statewide moratoriums to keep the controversial natural gas wells out of their towns. 
But in Pennsylvania, the epicenter of the controversial drilling, the legislature recently stripped all local zoning authority to prevent drilling, overturning the kinds of steps that have frustrated drillers in neighboring states. As a result, a different and riskier strategy is emerging in the battle to keep drilling at bay: local ordinances and organizing elevating the civil rights of communities and nature while limiting the legal rights of corporations. 
“What we are doing with our ordinances is challenging the authority of state government to license the corporations to violate rights,” said Ben Price, Community Environmental Legal Defense Fund (CELDF) project director. “The courts have never seen that argument before. There has not been a civil rights argument against industrial trumping of local authority, or against the state using licensing statutes to trump local self-governing authority to protect health, safety and welfare.”
In Pittsburgh and surrounding suburbs, State College and handful of small towns in New York and Maryland, municipal governments have explicitly asserted their right to a clean environment, to safeguard natural resources, and have stated the civil rights of people are superior to the economic rights of corporations—even if state legislatures or regulatory agencies supervise those industries, such as gas producers.  
In Pennsylvania, these local ordinances are among a handful of legal and political lines of defense being drawn against a new state law that has granted extraordinary powers to gas companies and to state regulators. They are part of a strategy to recast this struggle as one that is not just about whether fracking can occur, but rather as a civil rights battle where the key issue is can a community govern itself, its natural resources, and its future.
“It’s not a gas extraction problem,” said CELDF’s Price. “It’s a rights denial problem.”  
The Power of Money
The 500-mile long Marcellus Shale and two other shale deposits in Pennsylvania, West Virginia, western New York and eastern Ohio, are a Saudi Arabia-sized resource, the U.S. Geological Survey has said. According to the gas industry, the deposits are worth billions and could not only meet one-quarter of the nation’s natural gas needs by 2020, but also generate jobs and lift impoverished local economies. Even though some financial experts have questioned those projections, Pennsylvania’s Republican-led government has embraced gas drilling as if it were a modern gold rush. 
However, getting to the gas is not a simple process. The industry uses a technique called hydraulic fracturing, or fracking, in which large volumes of water with toxic chemicals is injected under great pressure into wells and lateral bores to crack the rock and free the gas. The industry has not disclosed what chemicals it uses and claims fracking is safe. But in numerous communities across the country people have seen drinking water polluted, reported earthquake-like tremors and even seen gas escape in their home plumbing. 
Last month in Pennsylvania, Republican Gov. Tom Corbett and GOP majorities in both legislative chambers brushed aside skeptics and community activists to adopt what might be the most anti-democratic, anti-environmental, pro-fracking new law in the nation. Act 13 comprehensively rewrote the state’s oil and gas laws for the first time since 1984, giving unprecedented power to the gas industry, smothering local political obstacles and streamlining statewide procedures to license and operate the wells.
Fracking opponents saw the pro-drilling reforms coming, but nonetheless were stunned by how much the legislature and governor gave away to one industry.  
To start, Act 13 stripped local municipalities of zoning authority to block wells and any related operation—pads, pipelines and processing plants. It imposed a new tax on wells—but only shares those revenues with towns that delete anti-drilling provisions from local zoning codes. It empowers the state’s Public Utilities Commission to invalidate zoning codes that might block drilling, and tells the PUC it must act on behalf of “aggrieved” landowners or gas companies. Similarly, Act 13 gives gas companies eminent domain power to take property for drilling operations. And it imposes confidentiality rules for physicians and health professionals who might treat anyone suffering from a drilling-related illness, and says those medical files are not public records. 
Act 13 did not pass without opponents—including town officials who not only heard from concerned and well-informed residents at their meetings but also did not want to lose their zoning authority. While the state’s Republican political leaders ignored their complaints and pushed it through the legislature, that hubris has enlarged the anti-fracking opposition and added a significant new player: some local governments. 
“There are places for them to go,” said Steve Karas, Forest Hills Borough Council vice-president, who said some towns welcome the wells—though not his Pittsburgh suburb. “The idea of using a bill to do a statewide ‘we will come and do this’ whether you changed your zoning ordinance or passed a moratorium. Boy, it’s not like if they just went to where people wanted them they couldn’t do just fine from a monetarily perspective. They went for the whole deal.”  
“It is the corporate state,” said CELDF’s Price, whose group helped Forest Hills craft its community rights ordinance. “We have no representation at the state or federal level. That’s why we go to the locals to work. Because the only way we can illustrate what people want is to put that into law and have that challenged.”  
Fighting Back
The ordinances are one component in an emerging response to Act 13, said Doug Shields, former Pittsburgh City Council president who helped shepherd that city’s community rights ordinance—the state’s first—in 2010. 
There is much in Act 13 that should be challenged in court and declared unconstitutional under many established areas of law, Shields said. But the ordinances create a new legal area that has not yet come before Pennsylvania courts, he said, because they confer civil rights under the Pennsylvania constitution and prior state Supreme Court rulings. Legally speaking, that is different from the dozens of symbolic Town Meeting resolutions passed in nearby Vermont decrying corporate personhood and urging the Congress to propose a federal constitutional amendment to redress controversial U.S. Supreme Court campaign finance decisions. It is also different from the successful strategies used in New York, where lower courts have upheld local zoning ordinances to stop fracking—and the state legislature issued a moratorium to study the issue.
The question in Pennsylvania is not whether there will be litigation to challenge the constitutionality of numerous Act 13 provisions, but which provisions will first be targeted and when will the local community rights ordinances join the legal fight. 
“I would expect within the next 20 to 40 days, you will probably see lawsuits filed by municipalities challenging provisions,” Shields said, saying that Act 13 has many parts that appear unconstitutional under established areas of law.
“For instance, how is it that a legislative body—be it a Congress, a statehouse, or local town council—is subject to an appointed commission? Constitutionally, that makes no sense at all,” he said. “It’s the executive, the judiciary and the legislative branches that are the prime branches, not the legislation, the PUC, the executive and the court.” 
“And then it says the use by right [to drill] is in all zoning areas except residential,” Shields continued. “But if you go on to read about the residential where it is allowed, it is a conditional use. If the drilling company finds the [drilling] pad would be better served not 500 feet away, or 1,500 feet away, or whatever it is in local codes, they have a right to appeal to the PUC and it says the PUC shall grant them a variance. Your house doesn’t really have any protection despite what it says. That’s crazier than our ordinances saying that we have rights and that the federal and state government can’t take them away.”   
And there are other constitutional issues, Shields said, such the unequal power granted by the state to one industry. 
“How is that you convey these special rights to this single industry—not U.S. Steel, not Alcoa, not Joe’s garage, not Mary’s hair salon—just them. Even the federal government, when they build a Social Security office, cannot have a use by right to build anywhere,” he said. “The whole world has to abide by Pittsburgh’s zoning code except these guys? By conveying them special rights you denigrate the equal rights that we are all entitled to.”
Legal Strategies Taking Shape
It is not clear which legal avenue will first challenge Act 13, which takes effect on April 14. Some of the constitutional questions cited by Shields raise more "conventional" issues than limiting corporate personhood and granting civil rights to communities and nature. But courts take cases raising new issues all the time, and fracking opponents say it is inevitable that Pennsylvania’s highest courts will face questions about balancing of civil and economic rights. 
Indeed, part of the reason the gas industry wanted Act 13 was because the Pennsylvania Supreme Court ruled in 2009 that towns did have zoning authority to discourage drilling, and that authority did not conflict with state oil and gas laws. That unexpected decision—because it held that local zoning was not trumped by statewide gas regulations—opened the door to community rights ordinances. A year later, as Pittsburgh’s City Council saw the rapid incursion of the natural gas industry into western Pennsylvania, it became the first of a half-dozen municipalities to respond by asserting its “right to water,” “rights of natural communities,” “right to self-government” and “people as sovereign.” 
Pittsburgh’s ordinance, like the other Pennsylvania municipalities, also says that “natural gas extraction” companies “shall not have the rights of “persons” afforded by the United States and Pennsylvania Constitutions, nor shall those corporations be afforded the protections of the commerce or contact clauses within the United States Constitution or corresponding sections of the Pennsylvania Constitution.”
“Looking back, when you find that your state is in the middle of a 'game-changer' you go, ‘Hmm. How do you deal with this,” Shields recalled. “And the more I looked at it, it became evident that you really could not stop this juggernaut by way of zoning… What attracted me was it was under a whole different legal theory. It was not based in zoning law. It’s based in civil rights. And you reflect that off the constitution of Pennsylvania.”
Indeed, in 1972, Section 27 was added to Article One of Pennsylvania Constitution, and reads, “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.”  
Moreover, Pennsylvania is among a handful of states where citizens can petition the state Supreme Court to hear a case, Shields said, even though he expects the high court to take a case based on some combination of Act 13’s constitutional excesses, the new municipal civil rights ordinances, the state constitution’s environmental provisions, and the Court’s 2009 ruling allowing drilling and local zoning.
Even with all this legal fodder, it is unclear which municipalities will be first to challenge Act 13 and on what basis. Forest Hills’ Karas said his borough council would likely join an effort if it were not too costly and led by a non-profit law firm. Efforts to recruit towns were underway, Shields said, but he added that a handful of sympathetic localities were worried about the governor or senior legislators withholding state funds if they sued.
Neither Shields nor Price expect this fight to be settled in court. What they do expect is that political fallout will build as Pennsylvanians see the negative quality of life impacts from drilling—not just checks from leasing their land and a short-term economic boom. They also say GOP leaders will be forced to explain why they have given gas companies new economic rights at the expense of communities' and individuals' civil rights. 
“I have never seen an issue that has so many facets,” Shields said. “The politicians’ talking point is this is a game-changer. My response is, ‘Okay, what is the game? What are we changing? You are the moving party. The burden falls on you to explain it.”
Steven Rosenfeld covers democracy issues for Alteret and is the author of "Count My Vote: A Citizen's Guide to

The Community Environmental Legal Defense Fund : CELDF Press Release: Residents of Plymouth, New Hampshire Vote to Ban Land Acquisition for Northern Pass

The Community Environmental Legal Defense Fund : CELDF Press Release: Residents of Plymouth, New Hampshire Vote to Ban Land Acquisition for Northern Pass

March 17th, 2012
The Community Environmental Legal Defense Fund
Pennsylvania Community Rights Network
P.O. Box 360 Mercersburg, PA  17236


CONTACT: Gail Darrell, CELDF

March 17th, 2012

Residents of Plymouth, New Hampshire Vote to Ban Land Acquisition for Northern Pass
Ordinances Banning "Land Acquisition for the Construction of Unsustainable Energy Systems" put future energy projects under Community Control and prohibited the Taking of Land from Residents and the Despoiling of the Environment to Benefit Corporations

“The Ordinance passed!” exclaimed Peter Martin, resident of Plymouth, New Hampshire. The vote followed a several month long campaign to educate residents and elected officials who live in the college town, nestled in the foothills of the White Mountains. ”We are very relieved and extremely pleased, that Plymouth has joined the towns of Easton and Sugar Hill in adopting a Community Bill of Rights Ordinance.”


 (Saturday, March 17, 2012-  Plymouth, NH)  A local law to establish a Bill of Rights which recognizes and secures the civil and political rights of residents, known as the Town of Plymouth 's Right to A Sustainable Energy Future and Community Self-Government Ordinance, was enacted tonight by the majority of voters at their annual Town Meeting. The rights-based Ordinance bans land acquisition necessary for the construction or siting of unsustainable energy systems by corporations - activities that would violate the community Bill of Rights.

The local law states:
The Ordinance shall apply to any and all commercial production, distribution, transportation, or transmission of energy that would violate this Ordinance... and will become law within five (5) days of enactment.
The rights-based Ordinance was placed onto the warrant by collecting signatures of registered voters on a petition and submitting that petition to town officials to be placed onto the Town Meeting Warrant (ballot). The voters overwhelmingly approved the warrant article 75:42.
The local law supports the idea that residents are best qualified to design an energy policy that addresses the needs and specific environmental concerns of the community, with the following language:

Section 3- Statements of Law – Rights of Residents and the Natural Environment
(a) Right to a Sustainable Energy Future.
The residents of Plymouth have a right to a sustainable energy future in which energy decisions are made by the community, and in which fuel sources used to generate energy are renewable and sustainable.


Section 6 – Sustainable Energy Policy
The Town shall implement a Sustainable Energy Policy following the adoption of this Ordinance that provides a plan for the community’s reduction in use of power from unsustainable energy systems, within a time frame agreed to by the residents, to be decided by popular vote.

This Rights-Based Ordinance subordinates the legally bestowed privileges of corporations to the inalienable, indefeasible rights of people and living systems and recognizes and secures a right to preserve the aesthetic values of the town.
To clarify the supremacy of rights-as-law over corporate privilege and over state authority to license corporations to violate rights and empower them to act “legally” against the consent of the governed, the Right to A Sustainable Energy Future Ordinance asserts that:
(d) No permit, license, privilege, eminent domain authority, or charter issued by any State or federal agency, Commission or Board to any person or any corporation operating under a State charter, or any director, officer, owner, or manager of a corporation operating under a State charter, which would violate the prohibitions of this Ordinance or deprive any Town resident(s), natural community, or ecosystem of any rights, privileges, or immunities secured by this Ordinance, the New Hampshire Constitution, the United States Constitution, or other laws, shall be deemed valid within the Town of Plymouth.

The ordinance was drafted by the Community Environmental Legal Defense Fund at the invitation of community residents. Gail Darrell, Community Organizer for the Community Environmental Legal Defense Fund, said she applauds the residents of Plymouth in the assertion of their right to local self-government and self-determination and the support from elected officials who stood with their constituents.
Darrell further commented that, "It is good to know that our state motto, 'live free or die' is more than an old quote; it represents the spirit of New Hampshire and the integrity of our people to take a stand against threatened, corporate trammels of this lovely landscape and of the rights of citizens."
The Community Environmental Legal Defense Fund, located in Mercersburg, PA, has been working with people in Pennsylvania since 1995 and people in New Hampshire since 2006, to assert their fundamental rights to democratic local self-governance, and to enact laws which end destructive and rights-denying corporate action aided and abetted by state and federal governments.

Tuesday, March 20, 2012

Don’t miss our upcoming event:

Paul Cienfuegos and the community rights movement
Come learn how 150 communities in six east coast states have
successfully passed local ordinances that strip corporations of all
of their so-called "rights", that ban all sorts of legal but harmful
corporate activities, and many of them additionally recognize the
rights of nature. West coast communities are starting to organize
too. These local laws have successfully banned corporate factory
farms, fracking, water withdrawal for bottling, sewage sludge dumping
on farmland, etc, but they could also enshrine a community's right to
renewable energy, safe food, .... The sky's the limit. Paul has been
working actively to form a local Portland ordinance group. Please
join our movement that is exercising our inherent right to govern
ourselves. What do we want? It's time to stand up!

Join us for one of our upcoming workshops:
Suggested donation is $10, No one turned away!

Thur. March 22nd Reflections Coffee & Books,
446 Northeast Killingsworth St. Portland, 7pm – 930pm

Learn more at
Contact Paul via:
or scheduling workshops: 971.340.3837
Paul Cienguegos 
He started gathering folks in the Portland area to for a Community Rights Movement back in April, 2011. After much work, a ever expanding group is putting on workshops, doing outreach to communities and organizations, and gearing up for community envisioning. Here is Part 1 of 8, of an innovative inspirational lecture given by Paul on June of 2010 at the Village Building Convergence in Portland, Ore.
To find out more go to his website or Contact 971.340.3837 to schedule a talk or workshop.