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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PENN RIDGE COAL, LLC and |
ALLEGHENY PITTSBURGH COAL | CIVIL ACTION NO. 08-1452
COMPANY |
| Donetta W. Ambrose
| United States District Judge
Plaintiffs, |
|
v. |
|
BLAINE TOWNSHIP, |
|
Defendant. |
Memorandum of Law and History in Support of
Defendant’s Motion to Dismiss
Thomas Alan Linzey, Esq.
Attorney I.D. #76069
Community Environmental Legal Defense Fund, Inc.
675 Mower Road
Chambersburg, Pennsylvania 17202
(717) 709-0457 (v)
(717) 709-0263 (f)
Counsel for Defendant Blaine Township
2
Table of Contents
Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . 4 Statement of the Facts. . . . . . . . . . . . . . . . . . . . . . . . 16
Western Pennsylvania and Longwall Coal Mining. . . . . . . . . 16 The State’s Response to Longwall Mining. . . . . . . . . . . . 20 The Blaine Township Ordinances. . . . . . . . . . . . . . . 23
Questions Presented and Standard of Review. . . . . . . . . . . . . . . 25 Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . 26
I. It is Axiomatic That People Possess an Inalienable Right to Self-Governance …………………………………………………………….. 28
(A) The People of Blaine Township Possess an Inalienable Right to Local
Self-Governance…………………………. ………………………… 41 (B) The Right to Self-Government has been Asserted by the People of
Blaine Township Through Their Adoption of These Local Ordinances ………………………………………………………………………. 52
II. Corporations Are Created by State Governments as Subordinate, Public
Entities Through the Chartering Process, the Judiciary Has Empowered Them with Constitutional Rights, and Corporations Routinely Wield Those Rights to Deny the Right of Communities to Govern Themselves……... 56
(A) Corporations are Chartered by State Governments as Subordinate
Entities……………………………………………………………… 56 (B) Over the Past 150 Years, the Judiciary Has “Found” Corporations
Within the U.S. Constitution and Bestowed Constitutional Rights Upon Them………………………………………………………………... 64
3
1. “Finding” Corporations in the Fourteenth Amendment ……. 65 2. “Finding” Corporations in the Bill of Rights……………….. 70 (a) “Finding” Corporations in the First Amendment…………. 71 (b) “Finding” Corporations in the Fourth Amendment……….. 73 (c) “Finding” Corporations in the Fifth Amendment…………. 74
3. “Finding” Corporations in the Contracts and Commerce Clauses………………………………………………………. 76
(C) Corporations Routinely Use Those Constitutional Rights to Deny
Communities the Right of Local Self-Governance…………………. 78
1. How Corporate First Amendment Rights are Used to Deny People’s Right to Self-Governance………………………… 78
2. How Corporate Privacy Rights are Used to Deny People’s Right to Self-Governance…………………………………………. 84
3. How Corporate Fifth Amendment Rights are Used to Deny People’s Right to Self-Governance…………………………. 87
4. How Corporate Commerce Clause and Contracts Clause Rights are Used to Deny People’s Right to Self-Governance……… 88
(D) The Plaintiff Corporations Are Attempting to Use Government-
Conferred Constitutional Powers to Nullify Blaine Township’s Exercise of Community Self-Governance……………………………………. 93
III. It Was Beyond the Authority of the Federal and State Governments to
Bestow Constitutional Rights Upon Corporations Because Governments are Created to Secure the Rights of People, Not Deny Them. Governments are Therefore Doing Indirectly What They are Prohibited from Doing Directly Under Our Structure of Government………………………….. 98
IV. Conclusion………………………………………………………………108
4
Table of Authorities
CASES
Asbury Hospital v. Cass County, N.D., 326 U.S. 207 (1945)…........................... 93
Bank of Augusta v. Earle, 38 U.S. 519, 520 (1839)………………………….62, 63
Bell v. Maryland, 378 U.S. 226, 263 (1964) ……………………………………. 69
Braswell v. United States, 487 U.S. 99, 105 (1988) ……………………………. 62
Briscoe v. President & Directors of Bank of Kentucky, 36 U.S. 257, 328 (1837). 63
Burks v. Lasker, 441 U.S. 471, 478 (1979) …………………………………...... 62
California Bankers Assn. v. Shultz, 416 U.S. 21 (1974)………………………… 74
CELDF v. WMX, Technologies, et al., 1074 M.D. 1996 (Commonwealth Court of Pennsylvania 1997) …………………………………………………………….. 61
Central Hudson Gas & Electric Corp., v. Public Utilities Comm’n, 447 U.S. 557 at 579, 584, 589 (1980) …………………… ………………………………72, 82, 83
Chincleclamouche Lumber & Broom Co. v. Commonwealth, 100 Pa. 438, 444 (Pa. 1881) ……………………………………………………………………………. 62
City of Cincinnati v. Morris Investment Co., 451 N.E.2d 259, 260 (Hamilton Cty. Ohio 1982)………………………………………………… ………………….. 85
Commonwealth v. Widovich, 295 Pa. 311, 145 A. 295, 298 (Pa. 1929) ……….. 50
Commonwealth v. Stofchek, 322 Pa. 513, 519, 185 A. 840, 844 (1936)……..50, 51
Connecticut General Life Insurance Co. v. Johnson, 303 U.S. 77, 85-90 (1938). 69
Consolidated Rendering Co. v. Vermont, 207 U.S. 541, 553 (1908) …………… 74
Cort v. Ash, 422 U.S. 66, 84 (1975) ……………………………………………. 62
Covington & L. Turnpike Road Co. v. Sandford, 164 U.S. 578, 592 (1896) …… 68
Dartmouth College v. Woodward (4 Wheat. 518) 1816………………….76, 96, 97
5
Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 95 F.3d 1422, 1430-1431 (9th Cir. 1996), aff'd, 526 U.S. 687 (1999) …………………………………….. 87
Dodge v. Woolsey, 59 U.S. 331 (1855) …………………………………………. 63
Dow Chemical Corporation v. U.S., 476 U.S. 227 (1986)……………………… 74
Essgee Co. of China v. United States, 262 U.S. 151, 155 (1923) ………………. 62
F.E. Nugent Funeral Home v. Beamish, 173 A. 177, 179 (Pa. 1934) …………... 62
Federal Trade Comm’n v. American Tobacco Co., 264 U.S. 298, 307 (1924)….. ……...…………………………………………………………………….74, 85, 86
Ferry v. Ramsey, 277 U.S. 88, 96-97 (1928) …………………………………… 62
Fidelity Mut. Life Asso. v. Mettler, 185 U.S. 308, 327 (1902) …………………. 63
First National Bank of Boston v. Bellotti, 435 U.S. 765, 778, 809, 822 (1978) (rev’d 359 N.E.2d 1262, 1269 (Mass. 1977)……………………..62, 69-70, 81- 83
Fong Foo v. United States, 369 U.S. 141, 143 (1962) …………………………. 75
Go-Bart Co. v. United States, 282 U.S. 344, 356-357 (1931) ………………….. 74
Hale v. Henkel, 201 U.S. 43, 74, 75(1906)…….………………. 62,63,68,69,73, 85
Hancock Mut. Life Ins. Co. v. Warren, 181 U.S. 73, 76 (1901)………………… 63
In the Matter of United States of America, 286 F.2d 556, 564 (1st Cir. 1961)….. 75
International Dairy Foods Association v. Amestoy, 92 F.3d 67, 76, 81 (2nd Cir. 1996)……………………………………………………………………...78-81, 83
Jacobus v. State of Alaska, 338 F. 3d 1095, 1121 (9th Cir. 2003)………………. 72
Jellenik v. Huron Copper Mining Co., 177 U.S. 1, 11-13 (1900)……………… 63
Kamen v. Kember Fin. Servs., 500 U.S. 90, 99 (1991) ……………………….. 62
Kentucky Finance Corporation v. Paramount Auto Exchange Corporation, 262 U.S. 544, 550 (1923) ………………………………………………………………… 68
Leese v. Belfast Township Board of Supervisors, No. 304 of 2001-C (Fulton County, Pennsylvania, Court of Common Pleas (2001) ………… ……………………… 93
6
Lochner v. New York, 198 U.S. 45, 73, 75 (1905) ……………………………… 83
Louis K. Liggett Co., v. Lee, 288 U.S. 517, 565 (1933) …………………… 57, 59
Marshall v. Barlow's Inc., 436 U.S. 307, 309-310, 315 (1978)……………… … 85
Meyer v. State of Nebraska, 262 U.S. 390, 399, 400 (1923) …………66, 76-77, 90
Minneapolis & St. Louis Railroad Co. v. Beckwith, 129 U.S. 26, 28 (1889)…… 68
Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 687 (1978)………………………………………………………………………. 66
Newport and Cincinnati Bridge Co. v. United States, 105 U.S. 470, 480 (1881) . 75
Noble v. Union River Logging R. Co., 147 U.S. 165 (1893)……………………. 75
Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 196 (1946) ………………. 74
Pacific Gas & Elec. Co. v. Public Utilities Comm’n, 475 U.S. 1, 25 (1986)……. 72
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413, 415 (1922)……………… 75
Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 F. 2d 173, 179 (3rd Cir. 1988) …….…………………………………………………………………………….. 25
People v. Curtice, 117 P. 357, 360 (Colo. 1911) ………………………………. 62
People v. Hurlbut 24 Mich. 44, 84, 109 (1871)…………………………………. 48
People v. North River Sugar Refining Co., 24 N.E. 834, 835 (NY 1890) …..61, 62
Philadelphia & Southern Mail S.S. Co. v. Pennsylvania, 122 U.S. 326 (1887) … 63
Plyler v. Doe, 457 U.S. 202 (1982) …………………………………………….. 66
Poe v. Ullman, 367 U.S. 497, 516 (1961) ……………………………………… 66
Power Mfg. Co. v. Saunders, 274 U.S. 490, 493 (1927) ………………………. 68
Railroad Co. v. Maryland, 88 U.S. 456, 469, 471 (1874) ……………………… 63
Regents of the University of California v. Bakke, 438 U.S. 265, 388 (1978)…65, 99
7
Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S. 719, 741... (1973)…………………………………………………………………………… 72
San Mateo v. Southern Pacific R. Co., 13 F. 722, 747 (C.C.D. Cal. 1882)………66
Santa Clara County v. Southern Pacific Railroad Co., 118 U.S. 394 (1886) ….. 68
Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 479 (1977) …………………. 62
Shapiro v. United States, 335 U.S. 1, 66 (1948) ……………………………….. 62
Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920) …………. 74
Sinking-Fund Cases, 99 U.S. 700, 718 (1878) ………………………………63, 75
Smithfield Foods, Inc. v. Miller, 367 F. 3d 1061, 1063 (8th Cir. 2003)……….89-92
Smyth v. Ames, 169 U.S. 466, 522 (1898 )……………………………………… 68
South Dakota Farm Bureau, Inc. v. Hazeltine, et al., 340 F. 3d 583, 596 (8th Cir. 2003) …………………………………………………………………………… 93
St. Louis, I.M. & S Ry. Co. v. Paul, 173 U.S. 404, 408 (1899) ………………… 62
Synagro-WWT, Inc. v. Rush Township, 204 F. Supp. 2d 827, 843 (M.D. Pa. 2002); 299 F. Supp. 2d 410 (M.D. Pa. 2003) ……………………………………….….. 88
Terre Haute & I.R.Co. v. Indiana, 194 U.S. 579, 584 (1904)…………………… 63
Thurlow v. Massachusetts, 46 U.S. 504, 589-590 (1847)………………………. 91
United States v. American Tobacco Co., 221 U.S. 106, 142-143 (1911) ………. 63
United States v. Armco Steel Corporation, 252 F.Supp. 364, 367 (S.D. CA 1966) ……………………………………………………………………………….….. 86
United States v. Martin Linen Supply Co., 430 U.S. 564 (1977)…………….75- 76
United States v. Morton Salt Co., 338 U.S. 632, 650 (1950) …………………… 62
United States v. Union Pac. R.Co. 98 U.S. 569, 606, 616 (1878)………………. 75
United Steelworkers of America v. R.H. Bouligny, Inc., 382 U.S. 145, 147 (1965) …………………………………………………………………………………… 62
8
Virginia Bankshares v. Sandberg, 501 U.S. 1083, 1093 (1991) ……………….. 62
Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976)……………………………………………………………………72, 83
West Virginia State Board of Education v. Barnette, 319 U.S. 624, 637 (1943).. 63
Wheeling Steel Corp. v. Glander, 337 U.S. 562, 576-581 (1949)………………. 69
William Wynn, ex. rel., v. Philip Morris, Inc. et al., 51 F. Supp. 2d 1232 (N.D. Ala. 1999). …………………………………………………………………………… 61
Wilmington City Railway Co. v. People’s Railway Co., 47 A. 245, 248 (Del. Ch. 1900) ……………………………………………………………………………. 61
Wilson v. United States, 221 U.S. 361, 383 (1911) …………………………….. 63
Woodruff v. Mississippi, 162 U.S. 291, 299, 309 (1896) ………………………. 63
Yazoo & M.V.R.Co. v. Clarksdale, 257 U.S. 10, 26 (1921) ……………………. 63
CONSTITUTIONS
Mass. Const. (March 2, 1780) ……………………………………………...99, 1 04
NH Const., Art. 83……………………………………………………………….. 76
Pa. Const., Art. I, §2………………………………………………...51, 52, 55, 1 07
Pa. Const., Art. I, §25 ………………………………………………………51, 106
Pa. Const., Art. IX, §1…………………………………………………………… 47
Pa. Const., Art. IX §25………………………………………………………….. 38
Pa. Const. of 1776 at fifth provision (reprinted in Pennsylvania Legislative Reference Bureau, Constitutions of Pennsylvania/Constitution of the United States at 235 (1967))… ……………………………………………………………………….104
US Const., Art. IV, § 4………………………………………………………….103
US Const., 14th Amendment, § I (1868) ……………………….26, 64-69, 101, 102
9
US Const., 1st Amendment………………………………..26, 64, 71-73, 78-84, 93
US Const., 4th Amendment………………………………...26, 64, 73-74, 84-86, 93
US Const., 5th Amendment……………………………………26, 64, 73-74, 87, 93
US Const., Art. I, § 10 (Contracts Clause)……………………………….76, 88- 93
US Const., Art. I, § 2……………………………………………………………. 65
US Const., Art. I, § 8 (Commerce Clause)……………………………….77, 88- 93
US Const., Art. I, § 9……………………………………………………………. 65
US Const., Art. IV, §2…………………………………………………………… 65
US Const., Preamble……………………………………………………………1 01
Va. Const. (June 29, 1776)………………………………………………………. 99
STATUTES AND COURT RULES
30 U.S.C.,§1201(c) (Surface Mining Control and Reclamation Act) .…………. 16
Civil Rights Act of 1866…………………………………………………… ….. 65
Fugitive Slave Act of 1793……………………………………………………… 65
Fugitive Slave Act of 1850……………………………………………………… 65
Pa.Stat.Ann., Title 52, §1406.3 (Bituminous Mine Subsidence and Land Conservation Act) ……………………………………………………………16- 17
LOCAL ORDINANCES
Blaine Township, Pennsylvania, Municipal Ordinance No. 001-2006, 006-2008 (Corporate Mining Ordinance)…………………………………. … ..21-23, 52, 53
Blaine Township, Pennsylvania, Municipal Ordinance No. 002-2006, 007-2008 (Corporate Rights Ordinance)…………………………………21-24, 53-54, 94- 96
10
Blaine Township, Pennsylvania, Municipal Ordinance No. 002-2008 (Corporate Disclosure Ordinance)………………………………………………..22, 24, 54, 55
MISC.
Adolf A. Berle and Gardiner C. Means, The Modern Corporation and Private
Property (1933)…………………………………………………………………. 58
Articles of Confederation (1 March 1781)……………………………………… 99
Avalon Project at Yale Law School, The Fugitive Slave Act of 1850 (2002)…... 65
Carter Goodrich, The Government and the Economy, 1783-1861 (1967)……60, 61
Charles A. Reich, Beyond the New Property: An Ecological View of Due Process, 56 Brook. L. Rev. 731, 736 (1990)……………………………………………… 90
Charles de Montesquieu, The Spirit of the Laws, Book 2, Ch. 2 (1748) ……….103 Charles Francis Adams Jr. and Henry Adams, Chapters of Erie 12 (1956)..107,1 08
Cheryl Rainford, “Iowa Court Blasts Iowa Packer Ownership,” Agriculture Online (Jan. 23, 2003)…………………………………………………………………… 91
Cindy L. Tibbott, Environmental Concerns Related to the Practice of Valley Filling
in Pennsylvania, Audubon Society of Western Pennsylvania (1998)…………… 19
Committee for Economic Development, Research and Policy Committee, An Adaptive Program for Agriculture: A Statement on National Policy (1962)……. 89
Cong. Globe, 39th Cong., 1st Sess. 2459 (1866)…………………………………102
Dan Kennedy, “Silent Swoosh,” Boston Phoenix (May 2, 2003)……………….. 71
David Densmore, Supervisor, U.S. Fish and Wildlife, Letter to Harold Miller, Underground Mining Section, Pennsylvania DEP (May 28,2002) ……………... 19
David Densmore, Supervisor, U.S. Fish and Wildlife, Letter to William Plassio, District Mining Manager, Pennsylvania DEP…………………………………… 19
David Densmore, Supervisor, U.S. Fish and Wildlife, Letter to Harold Miller, Underground Mining Section, Pennsylvania DEP (Aug. 2, 2005)……… ………19
Declaration of Independence (U.S. 1776)…………………….32-35, 55, 56, 98, 99
11
Declaration of Resolves, Continental Congress, (Oct. 14, 1774)………………. 99
Don Hopey, “How Longwall Mining Works,” Pittsburgh Post-Gazette, (Feb. 15, 2008)...………………………………………………………………………..18, 20
Edwin Merrick Dodd, American Business Corporations Until 1860 (1934).........58
Fitzwilliam Byrdsall, The History of the Loco-Focos, or Equal Rights Party 169 (reprinted 1967)…………………………………………… …………………...1 03
Franklin D. Roosevelt, The Public Papers and Addresses of Franklin D. Roosevelt at 366 (1941)……………………………………………………………………….. 70
Frederic C. Howe, The City: The Hope of Democracy (1905)…………………. 39
Gerald E. Frug, The City As A Legal Concept, 93 Harv. L.Rev. 1069 (1980).. … 39
Geoffrey Holmes, Britain and the Glorious Revolution, 1689-1715 (1969)……. 30
Gordon S. Wood, The Creation of the American Republic 1776–1787 (1972) ……..…………………………………………………………………………45, 46
Gregory A. Mark, The Personification of the Business Corporation in American
Law, 54 U.Chi. L. Rev. 1441 (1987)…………………………………………57, 60
Hendrik Hartog, Public Property and Private Power: The Corporation of the City of
New York in American Law, 1730-1870 (1983)……………………………...37, 97
Howard J. Graham, “The Early Antislavery Backgrounds of the Fourteenth Amendment,” Everyman’s Constitution at Ch. 4 (1968)………………………..102
Howard J. Graham, Builded Better Than They Knew, 17 U. Pitt L. Rev. 537 (1956)…………………………………………………………………………… 68
Howard J. Graham, Our ‘Declaratory’ Fourteenth Amendment, 7 Stan. L. Rev. 3, 5 (1954)…………………………………………………………………………...1 02
Howard J. Graham, The ‘Conspiracy Theory’ of the Fourteenth Amendment, 47 Yale L.J. 371 (1938)………………………………………………………………….. 67
Iowa Farm Bureau Press Release, Farm Bureau Opposes Challenge to Iowa Packer
Ban (November 8, 2002)………………………………………………………… 91
12
Jack Kittredge, Bovine Growth Hormone, Northeast Organic Farming Association of New York, 2003, http://www.nofany.org/hottopics/bovinegrowthhormone.html .. …………………………………………………………………………………… 79
Jack P. Greene, Negotiated Authorities: Essays in Colonial Political and Constitutional History (1994)…………………………………………….28-30, 37
James Baird Weaver, A Call to Action (1892) …………………………………. 63
James K. Hosmer, Samuel Adams (1885)……………………………………… 56
James Madison, in Notes of the Debates in the Federal Convention of 1787 Reported
by James Madison, introduction by Adrienne Koch (1987) ……………………. 40
James Otis, The Rights of the British Colonies Asserted and Proved (1764)…...103
James Wilson, Remarks to the Pennsylvania Ratifying Convention, (Dec. 4, 1787) reprinted in Philip B. Kurland, The Founders’ Constitution Volume 1 at 62…. . 50
Jane Anne Morris, Gaveling Down the Rabble 1-3 (2008)…… ……………….. 77
Jerry Perkins, “Smithfield Challenges Iowa Ban in Federal Court,” Des Moines
Register.com (Dec. 17, 2002)…………………………………………………… 91
Jim Celenza, ‘A Most Essential Aspect of Production’ -- The Meaning of Workers’
Memorial Day, New Solutions: A Journal of Environmental and Occupational Health Policy at 60 (Spring 1995)……………………………………………………… 84
John Forest Dillon, Commentaries on the Law of Municipal Corporations, Vol. 1 at 154-156 (5th Ed. 1911) ……………………………………………………….37, 38
John Forest Dillon, The Laws and Jurisprudence of England and America, at 376-377 (1894)………………………………………………………………………105
Jon C. Teaford, The Municipal Revolution in America: Origins of Modern Urban
Government, 1650-1825 at 37(1975)……………………………………………. 32
Ken Gormley, et al, The Pennsylvania Constitution (2004)…………………41- 45
Leesa Kiewel, Iowa Will Appeal Ruling on Packer Ban, http://www.cattleplus.com/New%20Cattleplus/pages/news/agn/11.html ............................................................................................................................... 90
13
Letter from the House of Representatives of Massachusetts to Henry Seymour
Conway, (Feb. 13, 1768) reprinted in Harry Alonzo Cushing, ed., The Writings of
Samuel Adams, at 191 (1968)……………………………………………………100
Louis Hartz , Economic Policy and Democratic Thought, Pennsylvania, 1776-1860 (1948)…………………………………………………………………………… 58
Magna Carta of 1215……………………………………………………………. 34
Martin J. Schiesl, “The Politics of Efficiency: Municipal Administration and Reform
in America: 1880-1920,” (1977)………………………………………………… 37
Matthew J. Herrington, Popular Sovereignty in America 1776-1791, 67 Temp. L. Rev. 575 (1994)…………………………………………………………...44,46, 51
Morton J. Horwitz, The Transformation of American Law, 1870-1960 (1992)…………………………………………………………………………69, 70
Morton J. Horwitz, The Transformation of American Law, 1780-1860 at 112 (1977)……………………………………………………………………………. 59
Nancy Burns, The Formation of American Local Governments: Private Values in
Public Institutions 52, 53 (1994)……………………………………………….. 49
Nathaniel Adams, Reports on Cases Argued and Determined in the Superior Court of
Judicature for the State of New-Hampshire 135 (1819)………………………… 77
Oscar Handlin and Mary Flug Handlin, Commonwealth: A Study of the Role of
Government in the American Economy, Massachusetts 1774-1861 (1969)…58,1 00
Pauline Maier, American Scripture: Making the Declaration of Independence, at 48-49, 74-75 (1998) ………………………………………………………………… 33
Pennsylvania Archives, Minutes of the Third General Assembly, “Memorials Against Calling a Convention, 1779,” (Philadelphia, 1778-1779) available in Early American Imprints, Series I: Evans (1639 – 1800)……………………………… 47
Pennsylvania Charter of Privileges (1701) ……………………………………… 35
Pennsylvania Department of Environmental Protection, Healing the Land and Water:
Pennsylvania’s Abandoned Mine Reclamation Program (1998)……………….. 17
14
Pennsylvania Department of Environmental Protection, Pennsylvania’s Abandoned Mines: Problems and Solutions (1996) …………………………………………. 17
Pennsylvania DEP, The Effects of Subsidence Resulting from Underground
Bituminous Coal Mining on Surface Structures and Features and on Water
Resources, Second Act 54 Five-Year Report (Feb. 4, 2005)…………………20- 21
Pennsylvania Frame of Government of 1682……………………………..……. 35
Pennsylvania Legislative Journal – Senate 633 (2005)………………………… 46
Peter Kellman, “You’ve Heard of Santa Clara, Now Meet Dartmouth,” in Defying
Corporations, Defining Democracy at 89 (2001) ……………………………….77
Peter Linebaugh and Marcus Rediker, The Many-Headed Hydra: Sailors, Slaves,
Commoners, and the Hidden History of the Revolutionary Atlantic at 19, 136 (2000)……………………………………………………………………………100
Philip B. Kurland and Ralph Lerner, The Founders’ Constitution, Vol. One, 62, 425 (1987)…………………………………………………………………………50, 70
Ray Raphael, The First American Revolution: Before Lexington and Concord at 1, 218-219 (2002) ………………………………………………………………30, 31
Richard L. Grossman and Frank T. Adams, Taking Care of Business: Citizenship and
the Charter of Incorporation, 6-18 (5th Ed. 2002)……………………………58- 60
Richard L. Grossman, Wresting Governing Authority from the Corporate Class:
Driving People into the Constitution, 1 Seattle J. for Soc. Just. 147, 149-150 (2002)……………………………………………………………………………. 57
Robert Hamilton, The Law of Corporations 6 (1991)…………………………… 58
Robert J. Reinstein, Completing the Constitution: The Declaration of Independence,
Bill of Rights and Fourteenth Amendment, 66 Temple L. Rev. 361 (1993).. …. 102
Statement of the Berkshire County, Massachusetts, Representatives, (Nov. 17, 1778)…………………………………………………………………………… 1 03
Steven R. Kepler, PA Fish and Boat Commission, Division of Environmental Services, Memorandum on CPCC Bailey Mine, CMAP #30841316, Greene County,
to Joel Koricich, McMurray District Office, Department of Environmental Protection (1999)……………………………………………………………………………. 19
15
Terry Boulton, Taming Democracy: “The People,” the Founders, and the Troubled
Ending of the American Revolution (2007)……………………………………… 47
The Alarm, Number II (Oct. 1773)……………………………………………… 57
Thomas Frost , A Treatise on the Incorporation and Organization of Corporations 1 (1908)……………………………………………………………………………. 58
Thomas Gordon, Cato’s Letters, No. 38, (July 22, 1721)…………………….....101
Thomas Jefferson, Letter to Major John Cartwright (June 5, 1824)…………… 64
Thomas Linzey, Awakening a Sleeping Giant: Creating a Quasi-Private Cause of
Action for Revoking Corporate Charters in Response to Environmental Violations, 13 Pace Envtl. L. Rev. 219, 223 (1995). ……………………………………….. 61
Thomas M. Cooley, A Treatise on the Constitutional Limitations which Rest Upon
the Legislative Power of the States of the American Union (5th Ed.1883) …..48, 49
Thomas Paine, Common Sense (1776)……………………………………….... . 64
U.S. Office of Surface Mining Reclamation and Enforcement, Final Environmental
Impact Statement, Valid Existing Rights, Proposed Revisions to the Permanent
Program Regulations Implementing Section 522(e) of the Surface Mining Control
and Reclamation Act of 1977 and Proposed Rulemaking Clarifying the Applicability
of Section 522(e) to Subsidence from Underground Mining (OSM-EIS-29) (1999)……………………………………………………………………………. 18
US Department of Agriculture Advisory Committee on Agricultural Concentration, Concentration in Agriculture, (June 1996)……………………………………… 89
US Department of Agriculture National Commission on Small Farms, A Time to Act (January 1998)…………………………………………………………………… 89
Virginia Declaration of Rights (June 12, 1776)…..... ………………...99, 103, 1 04
Walter Rossman, Ed Wytovich and James M. Seif, Abandoned Mines –
Pennsylvania’s Single Biggest Water Pollution Problem (1997) ………………. 17
Willi Paul Adams, The First American Constitutions: Republican Ideology and the
Making of the State Constitutions in the Revolutionary Era at 4-5, 29-30 (1980) …………….. ………………………………………………………………...35, 36
16
Statement of the Facts
“I can’t stand the thought of a lot of (the township) being wrecked to pieces.”
-Cathy Laird, whose family has lived in Washington County for nearly 200 years;
Washington Observer-Reporter (December 19, 2007) at A-1.
“Stopping the community from being mined means we must challenge laws and decisions that have stripped away our right to self-government.”
-Scott Weiss, Chairman, Blaine Township Board of Supervisors (Blaine Township Planning
Commission Meeting, November 12, 2008).
“The Pennsylvania Constitution doesn’t mean shit if you’re dealing with the DEP and the courts. In this area, coal is king. Coal is King.”
-Michael A. Vacca, Vice-Chairman, Blaine Township Planning Commission (Blaine Township
Planning Commission Meeting, November 12, 2008).
Western Pennsylvania and Longwall Coal Mining
Evidence of environmental destruction from coal mining in the United States
is not hard to find. After years of community outcry, Congress finally acknowledged
in 1977 that mining operations had adversely affected the public welfare, and
declared that mining was
[c]ausing erosion and landslides, by contributing to floods, by polluting the water, by destroying fish and wildlife habitats, by impairing natural beauty, by damaging the property of citizens, by creating hazards dangerous to life and property, by degrading the quality of life in local communities, and by counteracting governmental programs and efforts to conserve soil, water, and other natural resources.
30 U.S.C. §1201(c) (Surface Mining Control and Reclamation Act, 1977) Over ten years earlier, the Pennsylvania legislature had similarly determined
that damage from mine subsidence had
17
[c]aused a very clear and present danger to the health, safety, and welfare of the people of Pennsylvania.
Pa. Stat. Ann., Title 52, §1406.3 (Bituminous Mine Subsidence and Land Conservation Act, 1966)
More than 200 years of coal mining in Pennsylvania have left a legacy of
environmental devastation. According to the Pennsylvania Department of
Environmental Protection, that legacy includes:
• Pennsylvania has one-third of all abandoned mine-related environmental
problems in the United States;
• More than 2,500 miles of Pennsylvania streams currently are degraded by acid
mine drainage pollution;
• 52% of all miles of waterways identified by Pennsylvania as “impaired” were
degraded by acid mine drainage – more than all other categories combined;
• Pennsylvania has 250,000 acres of abandoned mine lands;
• 2.6 billion cubic yards of coal refuse cover Pennsylvania’s landscapes;
• Environmental problems caused by past coal mining affect 45 of
Pennsylvania’s 67 counties; and
• Pennsylvania ranks first in the nation in the total estimated cost of
environmental cleanup needed for the past mining of coal – over $15 billion.
See Pennsylvania Department of Environmental Protection, Pennsylvania’s Abandoned Mines: Problems and Solutions (1996); Pennsylvania Department of Environmental Protection, Healing the Land and Water: Pennsylvania’s Abandoned
Mine Reclamation Program (1998); Walter Rossman et. al., Abandoned Mines –
Pennsylvania’s Single Biggest Water Pollution Problem (1997). While coal has been mined in Western Pennsylvania for more than 250 years,
with the consequences listed above, a new form of high-extraction mining called
18
“longwall mining” emerged in the 1980s, replacing “room and pillar” mining as the
predominant method of coal extraction in that part of the state. While “room and
pillar” mining consists of leaving coal pillars in place to support the roof of the coal
mine, the new longwall form of mining was described thusly by the Pittsburgh Post-
Gazette:
Longwall coalmining machines use self-advancing hydraulic systems to keep the mine roof from collapsing as a rotating steel-toothed cutter runs along the coal face, breaking away coal that falls onto a conveyer belt and is transported to the surface. The machines mine the coal in horizontal, rectangular “panels” that are 800 to 1,500 feet wide and 2 to 3 miles long. As the machines move forward, the roof supports are removed and the rocky “overburden” collapses into the mine void, causing surface subsidence throughout the undermined area, and to a lesser extent around its edges. . . . . Over the last decade, about 5,000 properties have been undermined and subsided, including dozens of historic homes and structures.
Don Hopey, “How Longwall Mining Works,” Pittsburgh Post-Gazette (Feb. 15, 2008).
Longwall coal mining produces its own unique legacy. As described by the
United States Office of Surface Mining:
Troughs (depressions in the ground surface formed by the sagging of the overburden into the mined-out area) are commonly related to subsidence of a longwall mine. . . The surface area affected by subsidence can be larger than the mined-out areas as a result of angle of draw. . . Ninety percent of the surface subsidence caused by longwall mining occurs within 4 to 6 weeks of mining. . . Subsidence can lead to functional impairment of surface lands, features, or facilities.
U.S. Office of Surface Mining Reclamation and Enforcement, Final Environmental
Impact Statement, Valid Existing Rights, Proposed Revisions to the Permanent
Program Regulations Implementing Section 522(e) of the Surface Mining Control
19
and Reclamation Act of 1977 and Proposed Rulemaking Clarifying the Applicability
of Section 522(e) to Subsidence from Underground Mining (OSM-EIS-29) (1999).
Existing literature reveals that longwall coal mining causes streams to de-
water or fill with sediment, thus eliminating those waterways. As the U.S. Fish and
Wildlife Service has commented:
Longwall mining frequently de-waters springs that feed first and second-order streams. In some instances, the headwater streams fed by these springs were also de-watered. . . there is no industry that has had a more damaging effect on streams than the coal industry has had on streams in southwest Pennsylvania. Among other adverse effects, miles of streams have either been dewatered, or the channel subsided and subsequently filled with sediment, and hundreds, if not thousands, of springs that supplied clean, cold water to aquatic life have dried up. . . Our biologists have observed both dry and subsided stream reaches where longwall panels had undermined streams. . .
See David Densmore, Supervisor, U.S. Fish and Wildlife, Letter to Harold Miller,
Underground Mining Section, Pennsylvania Department of Environmental
Protection (Aug. 2, 2005); David Densmore, Letter to William Plassio, District
Mining Manager, Pennsylvania Department of Environmental Protection (March 21, 2002), David Densmore, Letter to Harold Miller (May 28, 2002). Physical, chemical, and biological changes in streams have also been
documented as direct consequences of longwall mining. See Cindy L. Tibbott,
“Environmental Concerns Related to the Practice of Valley Filling in Pennsylvania,”
(Audubon Society of Western Pennsylvania, An investigation of high extraction
mining and related valley fill practices in southwestern Pennsylvania, Ch. 8 (1998)).
Changes to streambeds have also been documented to reduce aquatic habitat by 50%
and decrease the number of species within those streams. See Steven R. Kepler, PA
Fish and Boat Commission Division of Environmental Services, Memorandum on
CPCC Bailey Mine, CMAP #30841316, Greene County, to Joel Koricich, McMurray
District Office, PA Department of Environmental Protection (1999).
20
The State’s Response to Longwall Mining
As reported by the Pittsburgh Post-Gazette:
To accommodate longwall mining, the state Legislature, on the day before Christmas in 1994, passed Act 54, a law proposed and partly written by the coal industry. The new law allowed coal companies to dig under homes and other structures built before 1966, as long as the property owner was compensated for subsidence damage and water loss. Before 1994, coal companies had to leave pillars of coal to support such homes, including historic or architecturally significant structures.
Don Hopey, “How Longwall Mining Works,” Pittsburgh Post-Gazette (Feb. 15, 2008). Thus, under Act 54 and its implementing regulations, the law now permits the
undermining of homes, perennial streams, and private water supplies as long as the
coal operator agrees to “repair” the structural damage and “replace” water supplies.
Whereas prior to 1994 such subsidence was prohibited outright, Act 54 incorporated
planned subsidence into the permits themselves, requiring only “after the fact”
attempts to remedy harms and damages resulting from the subsidence.
Part of Act 54 also required the preparation and issuance of five year reports
which examine the effect of subsidence resulting from underground bituminous coal
mining on surface structures, features, and water resources. The most recent report,
issued on February 4, 2005 by the Pennsylvania Department of Environmental
Protection and California University of Pennsylvania’s Department of Earth
Sciences, found that between August of 1998 and August of 2003,
the [State] received 348 faxed messages from mine operators indicating a structure “problem” during the assessment period. . . problems were reported to the California District Mining Office for Dyers Fork and its tributaries, and to tributaries of Laurel Run, Enlow Fork, Robinson Fork, Mingo Creek, Spotted Tail Run, Dunkard Fork, and Roberts Run. . . [R]ecords reveal that 22 streams and/or ponds. . . reportedly suffered an impact during the assessment
21
period, warranting an investigation by the California District Mining Office. . . the University [also] found 60 reported land problems associated with 13 mines. . . [and i]nterruptions to natural gas service temporarily affected 137 customers. . .
See Pennsylvania Department of Environmental Protection, The Effects of Subsidence Resulting from Underground Bituminous Coal Mining on Surface
Structures and Features and on Water Resources: Second Act 54 Five-Year Report (Feb. 4, 2005). The Blaine Township Ordinances
After a year-long period of discussion and debate about the damage caused by
longwall mining, a comprehensive review of State laws that had been driven into
place to prevent localities from controlling mining within their municipalities, and a
review of how mining corporations had routinely nullified local mining laws over the
past five decades in Western Pennsylvania, the Blaine Township Board of
Supervisors adopted two Ordinances.
The first Ordinance [hereinafter the “Corporate Mining Ordinance”]1
prohibits corporations from engaging in mining activities within the municipality.
The second Ordinance [hereinafter the “Corporate Rights Ordinance”]2 protected
the right of Blaine residents to adopt the first Ordinance, by establishing law that
corporations do not possess certain legal rights or powers within the municipality.
Both Ordinances were adopted on October 16, 2006, and re-adopted with
amendments on July 21, 2008.
1 Ordinance No. 001-2006 (re-adopted with amendments as Ordinance No. 006-2008) 2 Ordinance No. 002-2006 (re-adopted with amendments as Ordinance No. 007-2008).
22
A third Ordinance, passed two years after the first two were originally
adopted, requires corporations doing business within the municipality to disclose the
extent of their activities within the Township [hereinafter the “Corporate Disclosure
Ordinance”]3. It was adopted on April 21, 2008.
In the “findings” section of the Corporate Mining Ordinance, the Township
Supervisors explained that
Corporations engaged in mining activities in Western Pennsylvania have damaged and harmed - and continue to damage and harm - people’s lives, properties, livelihood, their pursuit of happiness, and their quality of life.
Corporations engaged in mining have also damaged and harmed - and continue to damage and harm - ecosystems and natural communities. Those ecosystems and natural communities are essential for thriving human and natural communities – for both present and future generations.
Damages and harms to residents and ecosystems include subsidence of land and homes, loss of water, property devaluation, devastation of mountains and natural features, and destruction of complex natural communities, hydrological systems, and other ecosystems. In addition, a small number of multinational mining organizations – run by a handful of corporate Directors and Managers – have used accumulated corporate wealth gained from years of destructive corporate mining to enact statewide laws that strip almost all community decisionmaking from the citizens of Blaine Township.
The Board of Supervisors of Blaine Township finds that county, state, and federal governments have failed to protect and preserve either the health, safety, and welfare of residents and natural communities within the Township, or the fundamental right of Blaine Township residents to local control and self-government. The Board finds that the Pennsylvania Department of Environmental Protection – along with the State’s entire environmental regulatory structure – have legalized continuing corporate assaults on life, liberty, and people’s basic rights, contrary to the common-sense understanding of the purpose of the rule of law.
3 Ordinance No. 002-2008.
23
In addition, having examined the legacy of regulatory laws and agencies in Pennsylvania and the United States, the Board clearly understands that the Department of Environmental Protection’s enabling of mining corporations has not been the exception in this State and Nation, but a normal governmental practice.
The Board of Supervisors of Blaine Township finds that corporate mining in Western Pennsylvania is incompatible with the protection and preservation of the health, safety, and welfare of residents in Blaine Township; and that corporate mining is incompatible with the protection and preservation of the health, safety, and welfare of natural communities and ecosystems within Blaine Township. The Board of Supervisors of Blaine Township finds that corporate mining – backed by laws which empower small numbers of corporate directors and managers to override the wishes and values of majorities of citizens – destroys the authority and ability of people within Blaine Township to govern their communities democratically.
See Corporate Mining Ordinance at §3 (2006). Accordingly, the Township Board of Supervisors prohibited corporations from
engaging in mining within the municipality, while codifying a bill of rights within
the Ordinance which protects the rights of Blaine Township residents to a healthy
environment, their cultural heritage, and their quality of life.
In the second Ordinance, passed as a companion to the first, the Township
Board of Supervisors recognized that their exercise of self-government within the
municipality might conflict with the exercise of certain legal rights and privileges
claimed by coal mining corporations. That realization by the Township Supervisors
led to the recognition of the necessity of challenging those corporate legal rights and
privileges as illegitimate interferences with residents’ rights to govern their own
community. As such, they declared that
[t]he specific purpose of this Ordinance is to guarantee to the residents of Blaine Township their right to a republican form of governance by refusing to recognize the purported constitutional rights of corporations. By doing so, the Board of Supervisors seeks to remedy current and future harms that
24
corporations have caused - and will continue to cause - to the people of Blaine Township by the exercise of such “rights.”
See Corporate Rights Ordinance at §4.
Accordingly, the Township Supervisors declared that
Within Blaine Township, corporations shall not be “persons” under the United States or Pennsylvania Constitutions, or under the laws of the United States, Pennsylvania, or Blaine Township, and so shall not have the rights of persons under those constitutions and laws. In addition, within the Township of Blaine, no corporation shall be afforded the privileges, powers, and protections of the Contracts Clause or Commerce Clause of the United States Constitution, or of similar provisions from the Pennsylvania Constitution.
See Corporate Rights Ordinance at §5.
The third Ordinance, Blaine’s disclosure Ordinance, accomplishes two goals –
first, it requires all corporations doing business within Blaine to disclose those
activities to the Blaine Supervisors, to enable the Supervisors to enforce their
Township Ordinances. In addition to that, the disclosure Ordinance bans those
corporations with a history of noncompliance with law from doing business within
the Township of Blaine. See Corporate Disclosure Ordinance at §§5-7.
25
Questions Presented
1. Do the Plaintiff Corporations Lack Standing to Pursue this Litigation
Because Every Count of Their Complaint is Secured by an Alleged Violation
of the Plaintiffs’ Corporate Constitutional Rights, When the Township Has
Adopted Laws Establishing that Corporations Do Not Possess Those Rights
Within the Township?
Proposed Answer: Yes
2. Does the Conferral of Constitutional Rights Upon Corporations - Which
Results in the Nullification of the Right of Blaine Township Residents to
Community Self-Government – Violate the Structure and Form of American
Democratic Government, and thus Render Corporate Assertions of those
Rights Illegitimate and Void?
Proposed Answer: Yes
Standard of Review
“A Complaint may be dismissed when the facts plead and the reasonable
inferences therefrom are legally insufficient to support the relief sought.” See
Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 F. 2d 173, 179 (3rd Cir.
1988).
26
Summary of Argument
It is axiomatic that the people of these United States created local, state, and
federal governments to protect, secure, and preserve their most cherished
fundamental and inalienable right to self-government. It is also axiomatic that the
people of these United States have declared that when a system of government
becomes destructive of that end, it is the right of the people constituting those
governments to change the form of governance which has been imposed upon them.
Corporations are created by State governments through the chartering process.
Over the past 150 years, the Judiciary has “found”4 corporations within the United
States Constitution. In doing so, Courts have 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 routinely nullify laws adopted
by communities, states, and the federal government. Nullification of those laws
denies the people’s inalienable and fundamental exercise of their right to govern
themselves.
4 This Brief refers to “finding” corporations in the various parts of the United States Constitution because corporations are not mentioned in that document.
27
Under this Nation’s oft-cited framework of governance, such denials are
beyond the authority of the corporation to exercise because they were beyond the
authority of public officials or institutions to confer.
28
Argument
I. It is Axiomatic That People Possess an Inalienable Right to Self-Governance
Community law-making as the legitimate expression of self-government by
people where they live has generated mostly negative attention from the courts and
legislatures, state and federal, since the time of the American Revolution. Given
the mythic quality attached to the idea of “democracy” in America, it is strange
that the notion of communities making important decisions with the force of law is
so foreign to American jurisprudence.
The American Revolution can fairly be characterized as nothing less than a
rejection by American communities of the denial of local self-government by the
British Empire. As noted by historian Jack P. Greene, “to emphasize their
subordinate status. . . [English] authorities always insisted that the [colonial]
assemblies existed not as a matter of right - not because they were necessary to
provide for colonials their just rights as Englishmen - but only through the favor of
the Crown.”5
That royal deprivation of community self-governance over issues of
immediate local concern formed the impetus and rationale for people to ignore - and
eventually to openly defy as illegitimate - British laws and expectations of
5 Jack P. Greene, Negotiated Authorities: Essays in Colonial Political and
Constitutional History 58 (1994).
29
compliance with those laws. Greene’s history of colonial governance before the
American Revolution illustrates that the conflict arose predominantly over the
English [“metropolitan,” as Greene refers to it] government’s repudiation of the
natural right of communities to community self-government:
To the very end of the colonial period, metropolitan authorities persisted in the views that colonial constitutions were static and that the lower houses were subordinate governmental agencies with only temporary and limited lawmaking powers --- in the words of one metropolitan official, merely ‘so many Corporations at a distance, invested with an ability to make Temporary By Laws for themselves, agreeable to their respective Situations and Climates.’
Rather than consciously working out the details of some master plan designed to bring them liberty or self-government, the lower houses moved along from issue to issue and from situation to situation, primarily concerning themselves with the problems at hand and displaying a remarkable capacity for spontaneous action, for seizing any and every opportunity to enlarge their own influence.
Because neither fundamental rights nor imperial precedents could be used to defend practices that were contrary to customs of the mother country or to the British constitution, the lower houses found it necessary to develop still another argument: that local precedents, habits, traditions and statutes were important parts of their particular constitutions and could not be abridged by a royal or proprietary order.
Between 1689 and 1763, the lower houses’ contests with royal governors and metropolitan officials had brought them political maturity, a considerable measure of control over local affairs, capable leaders, and a rationale to support their pretensions to political power within the colonies and in the empire. The British challenge after 1763 threatened to render their accomplishments meaningless and drove them to demand equal rights with Parliament and autonomy in local affairs, and eventually to declare their independence. At issue was the whole political structure forged by the lower houses over the previous century. In this context, the American Revolution becomes in essence a war for political survival, a conflict involving not only
30
individual rights, as historians have traditionally emphasized, but assembly rights as well.
(Id. at 46-47, 58, 163, 170, 173 176, 183.)
During the late seventeenth and early eighteenth centuries, royal and
proprietary governors of chartered colonies, who were to have been locally
administering the power of the central British government, lost significant amounts
of their coercive power over American communities. Apart from sheer distance from
London, the English Civil War saw the agitation of groups such as the Levelers,
Diggers, Quakers and Ranters for civil liberties and self-government. On the basis of
false promises that they would see such reforms, they helped propel Oliver
Cromwell’s Parliament into power and made it possible for the rebellious legislature
to behead a king. These and other events contributed to turning the empire’s attention
away from the American colonies.6
With colonial governors increasingly dependent upon dissipating community
cooperation, the autonomy of local assemblies blossomed. Two years before the
Declaration of Independence was adopted by the Continental Congress, war had
already been initiated against the oppressive British Empire by communities in
western Massachusetts. Historian Ray Raphael has recounted how, in 1774, residents
6 See Greene at 36-45, and particularly, at 83-84: “…as Carter has pointed out, another consequence of the [English] revolution was ‘a distinct, though not complete, withdrawal of central authority from local affairs.’ ” (quoting Jennifer Carter, “Revolution and the Constitution,” in Geoffrey Holmes, ed., Britain and the Glorious
Revolution, 1689-1715 at 53 (1969)).
31
of several Massachusetts Towns, including Worchester, Springfield, and Great
Barrington, forced appointed British officials to resign their posts:
When British Regulars fired upon a small group of hastily assembled patriots on the Lexington Green, they were attempting to regain control of a colony they had already lost. The real revolution, the transfer of political authority to the American patriots, occurred the previous summer when thousands upon thousands of farmers and artisans seized power from every Crown-appointed official in Massachusetts outside of Boston. . . . The Revolution of 1774 can be seen as the crowning achievement of communal self-government in colonial New England. More than ever before, people assumed collective responsibility for the fate of their communities. Above all, the revolutionaries of 1774 pioneered the concept of participatory democracy, with all decisions made by popular consent. Half a century before the so-called Jacksonian Revolution, they seized control of their government. While more learned patriots expounded on Lockean principles, these country folk acted according to those principles by declaring their social contract with the established government null and void. Although the consequences were frightening and potentially disastrous, the townfolk of Massachusetts were the first American colonists to follow revolutionary rhetoric to its logical conclusion. All authority derives from the people, they proclaimed, as they deposed British officials. As much as any revolutionaries in history, they applied this statement reflexively to themselves. They abrogated no authority as they went about their business.
Ray Raphael, The First American Revolution: Before Lexington and Concord at 1, 218-219 (2002).
New England’s role in leading the rest of the colonies toward independence
from the British Empire is entirely attributable to the local habits and traditions of
their self-governing communities. While elsewhere in the colonies, Committees of
32
Correspondence and Congresses were devised as ad hoc community governing
bodies to replace chartered colonial governments and municipal corporations, more
inclusive and participatory local assemblies and town meetings were already well
established in New England. It was this tradition – a rejection of the traditional
English municipal corporation premised entirely on promoting commerce, rather
than on self-governance - that formed the basis for the American Revolution. As
historian Jon Teaford explains:
The basic unit of both urban and rural government in New England was the town…By the mid eighteenth century, each of these bodies had reviewed the respective merits of the town and municipal corporation and had specifically rejected the latter as an instrument of urban rule. For New Englanders had grown accustomed to the freedom of unfettered commerce and the privilege of direct participation in town meetings, and they were not ready to sacrifice these for a government of aldermen, councillors, markets, and monopolies.
Jon C. Teaford, The Municipal Revolution in America: Origins of Modern Urban
Government, 1650-1825 at 37 (1975).
When the American people declared independence from Great Britain in 1776,
they did so with a fundamental document that marked the first time in western
history that a nation state founded itself upon the inalienable right of the people to
govern themselves. That document, the American Declaration of Independence, was
not composed in a vacuum through the spontaneous inspiration of the colonial
gentry. Before Thomas Jefferson and his committee penned it, Towns, Counties and
Colonial Assemblies throughout the American settlements had drafted and adopted
their own local declarations of independence. After adopting them, they gave them in
33
varying forms to their delegates, and sent them to the Continental Congress with
instructions to support a single Declaration of Independence for all the colonies.
Pauline Maier, in her book about the making of the Declaration of
Independence, writes:
There are, in fact, at least ninety documents in that category, and perhaps still more waiting to be found. Most have been forgotten under the influence of our national obsession with ‘the’ Declaration of Independence, although the bulk of them were published almost a century and a half ago, scattered through the pages of Peter Force’s voluminous American Archives. …. …the differences that distinguished one set of instructions and resolution from another proved relatively insignificant. For all practical purposes, the contents of the various state and local resolutions on Independence are virtually identical…They characteristically ‘empowered’ their representatives to ‘concur with the Delegates of the other Colonies in declaring Independency’. . .
Pauline Maier, American Scripture: Making the Declaration of Independence, at 48-49, 74-75 (1998).
The resulting document, now the cornerstone on which an independent
America has been built, said:
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,—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
34
The Declaration of Independence, ¶ 2 (U.S. 1776).
Thomas Jefferson, the primary author of this document, packed many
principles into these sentences. Government receives its power only from the consent
of the governed, governmental power is constrained by foundational principles
imposed by the people, and the people have the right to alter or abolish government
that is destructive of the people’s fundamental rights. These principles on the source,
scope, and abolition of governmental power are nothing less than a statement of the
inalienable right of self-government, a right held by all people in a free society.
The Declaration reflected the intent and values of the people who would have
to fight to see it realized. It purported to secure not only the “consent” of the
governed, but also to guarantee the participating will of the people over governing
decisions having direct effect within and upon their communities. Among the reasons
for separating from the British Empire (personified by the King), these were stated
unequivocally, declaring that separation was necessary because
He has refused his Assent to Laws, the most wholesome and necessary for the public Good.
[He has] suspend[ed] our own Legislatures and declar[ed himself and others] invested with Power to legislate for us in all Cases whatsoever.
The Declaration of Independence, ¶¶3, 24 (U.S. 1776)
The Declaration’s language on the right to self-government was a fundamental
departure from prior statements on the rights of citizens. Whether in the Magna Carta
35
of 1215, the Pennsylvania Frame of Government of 1682, or the Pennsylvania
Charter of Privileges of 1701, prior foundational documents acknowledged only
specific rights concerning property, religion, criminal procedure, and other aspects of
individual freedom7 in the context of a civil structure devoid of community freedom.
The Declaration of Independence was the first foundational document in western
history to recognize - at least in theory - the fundamental notion that people as a
community have a civil right to self-government that cannot be alienated to any
person, power, or governmental institution.
Following the American Revolution, this right to self-governance was codified
when the royal proprietorships and colonial corporations were dissolved and replaced
by constitutionalized states. During this process, people acted from within self-
governing municipal units of government. The classic study of the first constitutions
drafted by Americans during the Revolutionary era has this to say:
…In the Whig theory of social contract, ‘the people’ were the final authority to which all political power reverted in cases of flagrant abuse of delegated governmental power. But in the actual assumption of political power, no unit as vast and amorphous as ‘the people’ could possibly act as the vehicle of the political process. It was instead the remarkably stable territorial units of towns, cities, counties, and colonies that took control. The economic, political, and, in the broadest sense, social authority established within these familiar units did not actually melt away in a single stroke of revolutionary integration. Indeed, the system of political representation, which was generally accepted despite
7 Freedom, at least, for the minority of humans counted as “free persons” at the time. Women, Native Americans, Slaves, indentured servants, white males without property, and others were not afforded those protections.
36
cries of ‘Anarchy!’ and ‘Mob rule!’ was itself based on the continuing existence of this local authority. The very form of the organized resistance of the colonists was determined by a clear sense of the independence of territorial units that had evolved during the past 150 years. The borders England had drawn between the colonies continued to be respected as political demarcation lines even during the struggle against the mother country. Perhaps even more important for building a new governmental system was the integrity of the smaller units, called counties or districts in different colonies, and of the lowest level of political organization, cities, towns, townships, and parishes. All these units remained intact during the Revolution, and only the quasi-feudal manors in the Hudson River valley disappeared as political entities.
See Willi Paul Adams, The First American Constitutions: Republican Ideology and
the Making of the State Constitutions in the Revolutionary Era at 4-5, 29-30 (1980).
When state governments gathered to form a national American government,
the Federalists sought to construct a preemptive, centralized federal government,
while the Anti-Federalists sought to preserve the right of self-government at the state
level. This struggle, won by the Federalists in most respects, set the stage for a
preemptive federal/state relationship which then influenced and steered the
development of a preemptive state/local relationship. Thus, the counter-revolutionary
tendencies of federalism undid the community self-governing institutions and
traditions that the Revolution had established.
37
Before the 1830s, Hendrik Hartog tells us, “the law of municipal corporations
had not been invented,” and the courts had rarely ruled on issues about the nature and
scope of local government authority.8
Turning to models of governance pioneered in the colonial area, federalist
politicos worked steadily until the state-municipal relationship came to look eerily
similar to the one established earlier by Parliament’s Board of Trade over the
American colonies. Possessing the power to revoke local laws and charters, the
Board had
articulated a cluster of working assumptions about the nature of the relationship between Britain and the colonies…The first and most fundamental was implied in the familiar parent-child metaphor employed increasingly to describe the metropolitan-colonial connection. If England was the mother country and the colonies were her offspring, it clearly followed that the colonies were dependents, who needed the protection of, and who were obliged to yield obedience to their parent state. In any conflict of wills or judgment, the colonies had to defer to the superior strength and wisdom of the metropolitan government.”9
Former railroad bond lawyer and later Iowa Supreme Court Justice John
Forrest Dillon had the dubious honor of codifying that prevailing argument as the
frame for the new state-municipal legal framework. “Dillon’s Rule” continues to
serve as legal shorthand for usurped local governing rights under which American
communities continue to struggle for democratic survival. As Dillon explained,
8 Hendrik Hartog, Public Property and Private Power: The Corporation of the City
of New York in American Law, 1730-1870 at 184 (1983). 9See Greene at 56.
38
It must be conceded that the great weight of authority denies in toto the existence, in the absence of special constitutional provisions, of any inherent right of local self-government which is beyond legislative control. Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. If it may destroy, it may abridge and control. Unless there is some constitutional limitation ... the legislature might, by a single act, if we can suppose it capable of so great a folly and so great a wrong, sweep from existence all of the municipal corporations in the State, and the corporation could not prevent it. We know of no limitation on this right so far as the corporations themselves are concerned. They are, to phrase it, the mere tenants at will of the legislature. It is not necessary to a municipal government that the officers should be elected by the people. Local self-government is undoubtedly desirable where there are not forcible reasons against its exercise. But it is not required by any inexorable principle.
John Forrest Dillon, LL.D, Commentaries on the Law of Municipal Corporations, at 154-156 (5th Ed. 1911) (emphasis in original).10
This parallel between the governance of American colonies by the British
Empire, and of our municipalities by the Commonwealth of Pennsylvania today,
reveals the incompatibility of a colonial governing framework with one premised on
10 For a sense of the prevailing attitude among Dillon’s contemporary municipal “reformers” see Martin J. Schiesl’s account. He writes:
Simon Sterne, a reform lawyer and member of the Tilden commission [formed in 1875 to investigate the Tweed ring in New York], argued in 1877 that the ‘principle of universal manhood suffrage’ only applied to ‘a very limited degree’ in municipal administration because the city was ‘not a government, but a corporate administration of property interests in which property should have the leading voice.’ In the same vein, Francis Parkman saw the notion of ‘inalienable rights’ as an ‘outrage of justice…when it hands over great municipal corporations…to the keeping of greedy and irresponsible crowds.’
Martin J. Schiesl, The Politics of Efficiency: Municipal Administration and Reform in
America: 1880-1920 at 9 (1977).
39
the principles of self-government. The impulse to throw off the bonds of
monopolistic governance, whether monarchical, aristocratic or incorporated, more
truly comports with American ideals of justice than the structure of law under which
municipalities, ruled by preemptive state fiat, are pitted against the rights of publicly
chartered, privileged and empowered -- but privately governed -- business
corporations.
Blaine Township is not alone among the disaffected municipalities of
Pennsylvania, or indeed, of this nation. The struggle for self-government on issues of
direct import to communities is long-standing. More than one hundred years ago,
local government reformers tried to drive first principles to the forefront of the
struggle for community rights. Frederic C. Howe’s words of a century ago make
clear that Blaine Township’s adoption of self-governing local laws is part of an
enduring campaign for fundamental rights11:
This agitation for home rule is but part of a larger movement. It is more than a cry for charter reform; more even than a revolt against the misuse of the municipality by the legislature. It partakes of a struggle for liberty, and its aim is the enlargement of democracy and a substitution of simpler conditions of government. It is a demand on the part of the people to be trusted, and to be endowed with the privileges of which they have been dispossessed…The state at large can have no more interest in [local] matters than it has in the methods of the corporations which it creates.”
Frederic C. Howe, The City: The Hope of Democracy at 167-168 (1905).
11“Public freedom [is] the ability to participate actively in the basic societal decisions that affect one’s life.” Gerald E. Frug, The City As A Legal Concept, 93 Harv. L.Rev. 1069 (1980).
40
The people’s right to self-governance is reflected in (though not dependent
upon) the democratizing institutions of popular government that emerged from
America’s revolutionary period. An honest interpretation of history and law depends
upon a correct deference to the “original intent” of those upon whose aspirations
independence was contingent. The founders of America’s independence, of its’ pre-
revolutionary local constitutions and post-revolutionary national constitutions, of its’
commitment to rights and consent of the governed as the foundation of just
government, were not the enfranchised few white men of wealth and property who
wrote the national constitution12 and privatized public institutions. Those
12 In James Madison’s own notes from the Philadelphia Convention of 1787,
he expressed the irrelevance of determining what the will of the people was as the drafters of the U.S. Constitution went about their task. He wrote:
Mr. MADISON, observed that if the opinions of the people were to be our guide, it would be difficult to say what course we ought to take. No member of the convention could say what the opinions of his Constituents were at this time; much less could he say what they would think if possessed of the information & lights possessed by the members here; & still less what would be their way of thinking 6 or 12 months hence. We ought to consider what was right & necessary in itself for the attainment of a proper Government. A plan adjusted to this idea will recommend itself ---The respectability of this convention will give weight to their recommendation of it. Experience will be constantly urging the adoption of it, and all the most enlightened & respectable citizens will be its advocates. Should we fall short of the necessary & proper point, this influential class of Citizens will be turned against the plan, and little support in opposition to them can be gained to it from the unreflecting multitude.
James Madison, (June 12, 1787) in Adrienne Koch, Notes of the Debates in the
Federal Convention of 1787 Reported by James Madison, at 107 (1987).
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revolutionary founders were the disenfranchised men and women who fought for -
and thought they had won – the right to govern themselves.
(A) The People of Blaine Township Possess an Inalienable Right to Local
Self-Governance.
Eleven days after the signing of the Declaration of Independence, a
revolutionary committee convened in Pennsylvania to craft a constitution for the
commonwealth. Ken Gormley, et al., The Pennsylvania Constitution at 877 (2004).
The people of the commonwealth did not get to approve Pennsylvania’s first
constitution. Yet, it contained a preamble and a declaration of rights that, in sections
III–V, acknowledged the peoples’ inalienable right to “community” self-government
in its formulation of the source, scope, and abolition of governmental power:
WHEREAS all government ought to be instituted and supported for the security and protection of the community as such, and to enable the individuals who compose it to enjoy their natural rights, and the other blessings which the Author of existence has bestowed upon man; and whenever these great ends of government are not obtained, the people have a right, by common consent to change it, and take such measures as to them may appear necessary to promote their safety and happiness... A Declaration of the Rights of the Inhabitants of the Commonwealth or State of Pennsylvania . . . . IV. That all power being originally inherent in, and consequently derived from, the people; therefore all officers of government, whether legislative or executive, are their trustees and servants, and at all times accountable to them.
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V. That government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community; and not for the particular emolument or advantage of any single man, family, or set of men, who are only part of that community: And that the community hath an indubitable, unalienable and indefeasible right to reform, alter, or abolish government in such manner as shall be by that community judged most conducive to the public weal.
Pennsylvania Constitution of 1776, Ch. I, § III–V (emphasis added) (in Ken Gormley, The Pennsylvania Constitution, at 878 (2004)).
The language here is significant. People are the source of all governmental
power - which governments must exercise for the common benefit of people, nations,
or communities - and to ensure that this is so, the “community” has “an indubitable,
unalienable and indefeasible right to reform, alter or abolish government.” It is not
the state that holds the right, nor elected officials or governmental bodies, nor
corporate interests. Rather, communities of people naturally have a right to self-
government, and they are powerless only in their inability to alienate that right to
anyone.13
To understand the significance of the word “community” in this section of
Pennsylvania’s first constitution, it is necessary to know the history of Pennsylvania
government in the eighteenth century. As told by John L. Gedid in Ken Gormley’s
The Pennsylvania Constitution, it was a story of disenfranchised communities in the
13 In his treatise, Gormley writes, “[m]any modern-day lawyers are surprised to learn that Pennsylvania’s Constitution of 1776 was widely viewed as the most radically democratic of all the early state constitutions.” Ken Gormley, The Pennsylvania Constitution, at 3 (2004).
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western part of the state fighting to share political power with communities around
Philadelphia:
By the middle of the [eighteenth century], serious geographic divisions had grown up between persons in the western part of the colony and those in the east. For example, persons living in the western part of the colony after the French and Indian War began to work and campaign for reapportionment of representation, because they believed that the Quaker establishment in Philadelphia had neglected their needs during the hostilities. Indeed, it was clear that the Quakers in Philadelphia, Bucks and Chester counties had total control of the colony by mid-century. Not only did the eastern Quakers control most political power in Pennsylvania, but they also worked diligently and, at least in most of the eighteenth century, successfully to preserve their monopoly on political power. The Quakers accomplished this domination by restricting the franchise and by refusing to create or admit new counties, especially in the western part of the colony. The voting restrictions prevented large numbers of persons in the east—mostly tradesmen, whose population had grown rapidly—from exercising power; and the county restrictions prevented large numbers of settlers—mostly farmers—on what was then the frontier in the western part of the colony from exercising power. Those in the west also campaigned vigorously for liberalization of naturalization requirements. Against this background of internal strife and division in Pennsylvania in 1776, the Continental Congress recommended to the colonies that they renounce their allegiance to the King and “adopt such government as shall ... best conduce to happiness and safety.” There had grown up between the end of the French and Indian War and 1776 committees and military associations of dissatisfied citizens who worked for better representation, and these groups began calling for separation from England. The colonists’ reaction to the Revenue Acts of 1767 furnishes a good example of how these activist organizations arose. After the Revenue Acts were imposed, there was a strong protest in the colony. The colonists organized an association to oppose those Acts. This association had committees in the capitals of every county, and in most large towns, and these committees were an effective political organization and a valuable means of spreading information. They were very similar to political parties in many ways. Later, the experience with this “association” led to familiarity with how to organize to resist the English Crown. Thereafter, when the First Continental
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Congress in 1774 recommended the formation of committees throughout the colonies, the people of Pennsylvania were ready and immediately mobilized into committees. One important reason for the rapid growth of these committees was the lack of representation of large numbers of inhabitants, especially in the western part of the colony. These “revolutionary committees” had no legal legitimacy, but they nevertheless played an important part of the opposition to England. These committees held a provincial convention in 1775. The stated purpose of the convention was to encourage manufacturing, but the real reason was “to familiarize the people with the necessity of subverting the old charter and establishing a new constitution on a more popular basis.” In fact, there is considerable evidence that the provincial conference met in order to draw up plans for a convention to draft a new constitution. ... On May 15, 1776, the Continental Congress adopted a resolution that called for the colonies to throw off English rule and adopt their own constitutions. The response of the colony to the call of the Continental Congress was an address adopted by the committees of the various counties in a meeting in Philadelphia. The address was circulated to the inhabitants of Pennsylvania and called on them to separate from England, to elect representatives to draft a constitution, and to form a government “under the authority of the people.” After elections were held, the Pennsylvania convention met in Philadelphia on July 15, 1776. It consisted of elected members from nearly all of the counties. Most of the representatives were members of the revolutionary and military committees and associations of correspondence. ... Who were the members of the Constitutional Convention of 1776?... There were few well known members of the Convention, and many were farmers or artisans who had no constitutional or legal training.14
14 It is important to note that even though white farmers and artisans asserted their political power at the time, the majority of people were still absent from the task of constitution-making, i.e., women, slaves, indentured servants, people without property, etc. The right of local self-governance is inherent in all the people of a community in a free society.
45
John L. Gedid in Ken Gormley, et al, The Pennsylvania Constitution, 37–41 (2004).
In light of this history, the use of the word “community” in the first
Pennsylvania Constitution is no accident. The drafters knew that without
acknowledging the inalienable, superior right of communities to local self-
government, the people would not accept a new frame of government that would
substitute an oppressive colonial machinery for an oppressive state machinery. To
remind the general government that it always would remain inferior to the right of
community self-government, the frame of general government crafted by the
Constitution “explicitly incorporated the Declaration of Rights into the Constitution
with the mandate that it ‘ought never to be violated on any pretence whatever.’”
Gormley, The Pennsylvania Constitution, at 43–44. In other words, the rights
announced in the Declaration of Rights were not showpieces that the legislature
could circumvent on a flimsy basis akin to rational basis scrutiny. The rights could
never be violated ever, for any reason.
Historian Gordon Wood has shown that an anonymous writer called
“Demophilus” influenced the Pennsylvania convention with language such as the
following:
The intimate involvement by the ancient Saxons of the common people in politics was what most impressed the Pennsylvania radicals and Jefferson. Men became concerned about government because they participated daily in the affairs of their tithings and towns, not only by paying taxes but by performing public duties and by personally making laws. When these tasks
46
were taken out of the people’s hands and given to superior bodies to perform, men fell into a political stupor, and have never, to this day, thoroughly awakened, to a sense of the necessity there is, to watch over both legislative and executive departments in the state. If they have now and then opened their eyes, it is only to survey, with silent indignation, a state from whence they despair of being able to recover themselves. Fixed establishments on the one hand, rooted habits and prejudices on the other, are not easily got over.
Quoted in Matthew J. Herrington, Popular Sovereignty in America 1776-1791, 67 Temp. L. Rev. 575, 585–86 (1994).
Gordon Wood said derisively of this era of constitution making:
The trite theory of popular sovereignty gained a verity in American hands that European radicals with all their talk of all power in the people had scarcely considered imaginable except in those rare times of revolution. “Civil liberty” became for Americans “not ‘a government of laws,” made agreeable to charters, bills of rights or compacts, but a power existing in the people at large, at any time, for any cause, or for no cause, but their own sovereign pleasure,15 to alter or annihilate both the mode and essence of any former government, and adopt a new one in its stead.” American liberty seemed in fact to have made revolution perpetual and civil disorder legitimate.
Gordon S. Wood, The Creation of the American Republic 1776–1787 at 362 (1972).
That Pennsylvanians intended no abridgement of the right to community self-
government as they considered entering into the U.S. Constitution, a social compact
not of states, but of “We the People,” was made clear by their concerted defense of
the Commonwealth’s constitution when it came under threat of replacement by
15 It is striking to note how similar this language is to the language used by then-Senator Jubelirer in support of Act 38 (an Act adopted in 2005 to preempt municipal governments from adopting laws dealing with agribusiness and sludge corporations) and in derision of local control: “At the heart of the local ordinance movement is the notion that there is the right to reject anything, anywhere, for any reason, at any time.” See 2005 Pennsylvania Legislative Journal—Senate 633.
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wealthy and powerful state leaders at the height of revolutionary hostilities that kept
common people otherwise occupied. Historian Terry Bouton says this:
the 1776 constitution enjoyed widespread popular support in the state. The surest sign of that support came in early 1779, when a group of state leaders attempted to call a new convention to overturn the constitution because they believed it was too democratic. In response, ordinary people across the state launched a petition drive to support the 1776 charter. Conditions were not favorable for such an effort: many people were more focused on British and Indian enemies than they were on political doings in the state; most of the Pennsylvania line was encamped in northern New Jersey and upstate New York and, therefore, could not defend the constitution under which they were fighting. Nor did the weather cooperate: the winter of 1779 was the coldest of the war. Despite wartime chaos and frigid temperatures, in a little more than a month, over 16,500 Pennsylvanians signed petitions expressing their approval of the 1776 constitution. To put this effort in perspective, consider that eight years later, in 1787, only about 6,800 Pennsylvanians voted in favor of the federal Constitution (and only about 13,000 cast votes in the ratification elections). In sum, more than twice as many Pennsylvanians voiced support for the 1776 state constitution than for the 1787 federal Constitution.16
Terry Bouton, Taming Democracy: “The People,” The Founders, and the Troubled
Ending of the American Revolution at 57 (2007). Some jurisprudence has hewn closer to that original intent than others.
Concurring in an early Michigan case on the right of local self-government, Chief
Justice Thomas M. Cooley wrote:
16 For petitions to stop the overturning of the 1776 constitution, see “Memorials Against Calling a Convention, 1779,” Pennsylvania Archives, Minutes of the Third
General Assembly (Philadelphia, 1778-1779). All of the minutes of the general assembly, as well as much of the other published material from the late eighteenth century, are available on Early American Imprints, Series I: Evans, 1639-1800. The assembly minutes and journals can be found under the heading “Pennsylvania. General Assembly Journals.”)
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The doctrine that within any general grant of legislative power by the constitution there can be found authority thus to take from the people the management of their local concerns, and the choice, directly or indirectly, of their local officers, if practically asserted, would be somewhat startling to our people, and would be likely to lead hereafter to a more careful scrutiny of the charters of government framed by them, lest sometime, by an inadvertent use of words, they might be found to have conferred upon some agency of their own, the legal authority to take away their liberties altogether. If we look into the several state constitutions to see what verbal restrictions have heretofore been placed upon legislative authority in this regard, we shall find them very few and simple. We have taken great pains to surround the life, liberty, and property of the individual with guaranties, but we have not, as a general thing, guarded local government with similar protections. We must assume either an intention that the legislative control should be constant and absolute, or, on the other hand, that there are certain fundamental principles in our general framework of government, which are within the contemplation of the people when they agree upon the written charter, subject to which the delegations of authority to the several departments of government have been made.... ... [W]hen the state reaches out and draws to itself and appropriates the powers which from time immemorial have been locally possessed and exercised, and introduces into its legislation the centralizing ideas of continental Europe, under which despotism, whether of monarch or commune, alone has flourished, we seem forced back upon and compelled to take up and defend the plainest and most primary axioms of free government. [L]ocal government is a matter of absolute right; and the state cannot take it away. People v. Hurlbut, 24 Mich. 44 (1871) (Cooley, J., concurring).
In his treatise on constitutional law, Justice Cooley explained again how in a
free society, constitutions are necessarily founded upon fundamental rights retained
by the people:
In considering state constitutions we must not commit the mistake of supposing that because individual rights are guarded and protected by them they must also be considered as owing their origin to them. These instruments
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measure the powers of the rulers, but they do not measure the rights of the governed. What is a constitution, and what are its objects? It is easier to tell what it is not than what it is. It is not the beginning of a community, nor the origin of private rights; it is not the fountain of law, nor the incipient state of government; it is not the cause but consequence of personal and political freedom; it grants no rights to the people, but is the creature of their power, the instrument of their convenience. Designed for their protection in the enjoyment of the rights and powers which they possessed before the constitution was made, it is but the frame-work of the political government, and necessarily based upon the pre-existing condition of laws, rights, habits, and modes of thought.
Thomas M. Cooley, A Treatise on the Constitutional Limitations which Rest Upon
the Legislative Power of the States of the American Union 47 (5th Ed. 1883).17
17 The struggle between two theories of municipal self-governance pitted Cooley’s jurisprudence on the innate right of community self-government against Dillon’s theory that municipal governments were completely subservient to the State. As noted by author Nancy Burns,
On the one hand, Judge Thomas Cooley (one of the era’s leading scholars of constitutional law) argued that cities received power directly from the people and thus they had a kind of limited autonomy:
The sovereign people had delegated only part of their sovereignty to the states. They preserved the remainder for themselves in written and unwritten constitutional limitations on governmental actions. One important limitation was the people’s right to local self-government.
On the other hand, John Dillon (the foremost bond lawyer of his day) argued that cities were creatures of the state – nothing more than administrative divisions. As creatures of the states, these governments had no autonomy. Interestingly, Dillon’s argument survived (displacing the very widely read and subscribed-to work of Cooley). Entrepreneurial incentives for creating new cities were now quite high.
Nancy Burns, The Formation of American Local Governments: Private Values in
Public Institutions, 52-53 (1994).
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This structure of superior inalienable rights - and inferior powers of state
government - bears repeating, because for too long Pennsylvanians have been yoked
under a jurisprudence that says local governments are creatures of the state and
inferior to the general government.18 In fact, people are the source of all power, and
communities possess an inalienable right to govern themselves.
Emphasizing that structure at the Pennsylvania convention that ratified the
federal Constitution, James Wilson said:
“His [Mr. Findley’s] position is, that the supreme power resides in the States, as governments; and mine is, that it resides in the people, as the fountain of government; that the people have not—that the people mean not—and that the people ought not, to part with it to any government whatsoever. They can delegate it in such proportions, to such bodies, on such terms, and under such limitations, as they think proper.”
James Wilson, Remarks to the Pennsylvania Ratifying Convention (Dec. 4, 1787) (reprinted in Philip B. Kurland and Ralph Lerner, The Founders’ Constitution 62 (1987)). Because the right is inalienable, it cannot be delegated, limited, or made subservient
to any other power.19
18 See infra at 28-41. 19 Hence the Supreme Court of Pennsylvania was partially correct when it opined that the police power is one of the most important of government powers; the Court erred when it located that power as inherent in the state rather than in the people: “But, the state possesses inherently a broad police power, which transcends all other powers of government. There is therefore no unqualified right to acquire, possess, and enjoy property if the exercise of the right is inimical to the fundamental precepts underlying the police power. As declared by the Court in Commonwealth v.
Widovich, 295 Pa. 311, 145 A. 295, 298 (1929): ‘The police power is the greatest and most powerful attribute of government; on it the very existence of the state depends.
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What is certain is that the American Revolution rested its legitimacy on the
proposition that it is beyond the delegated power of any government to deprive the
people of their fundamental right to local self-governance.
For all of the reasons specified in this discussion, and because it is a self-
evident truth that people have a right to self-government in the communities where
they live, it is the assertion of the people of Blaine Township that the power of
community self-government is their inalienable and fundamental right, and that it
constituted the central purpose for which independence was wrested from the world’s
most powerful empire. Community self-government is exempt from, and hence
superior to, the general government of the state.20
* * * If the exercise of the police power should be in irreconcilable opposition to a constitutional provision or right, the police power would prevail.' It needs no constitutional reservation or declaration to support it.” See Commonwealth v.
Stofchek, 322 Pa. 513, 519, 185 A. 840, 844 (1936). 20 As one writer has said, “The people, who are sovereigns of the state, possess a power to alter when and in what way they please. To say [otherwise] ... is to make the thing created, greater than the power that created it.” Fed. Gazette, 18 Mar. 1789 (reprinted in Matthew J. Herrington, Popular Sovereignty in Pennsylvania 1776–1791, 67 TEMP. L. REV. 575 (1994)). Also see the current Pennsylvania Constitution, Art. I, § 25, “Reservation of Powers in People,” which declares: “To guard against the transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate.” This, in tandem with Art. I, § 2 is unassailable in constitutionally establishing the superior claim of the people over the state. Art. I, §2 reads: “All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety and happiness. For the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may think proper.”
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(B) The Right to Self-Government Has Been Asserted by the People of
Blaine Township Through Their Adoption of These Local Ordinances
On October 17, 2006, the people of Blaine Township – through their duly
elected Township Board of Supervisors – adopted two Ordinances. The first
Ordinance, entitled the “Blaine Township Corporate Mining and Democratic Self-
Government Ordinance” (the Corporate Mining Ordinance), prohibits corporations
from engaging in mining within the Township and codifies a declaration of rights
possessed by the residents of the Township. Section 12 of the Ordinance, entitled
“People’s Right to Self-Government” succinctly explains the basis of the Ordinance,
declaring that
[t]he foundation for the making and adoption of this law is the people’s fundamental and inalienable right to govern themselves, and thereby secure our rights to life, liberty, property, and pursuit of happiness.
See Corporate Mining Ordinance at §12.
As part of the Authority section of the Ordinance, the Township Board of
Supervisors – acting on behalf of the residents of the Township – identified that the
Ordinance was “enacted pursuant to the inherent, inalienable, and fundamental right
of the citizens of the Township of Blaine to self-government” and identified Article
1, Section 2 of the Pennsylvania Constitution as one of the bases for their exercise of
self-government, reiterating that the Constitution declares that
[a]ll power is inherent in the people and all free governments are instituted for their peace, safety, and happiness.
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See Corporate Mining Ordinance at §2.
The second Ordinance adopted by the people of Blaine Township – through
their duly elected Township Supervisors – is entitled the “Blaine Township
Democratic Self-Government and Local Control Ordinance” (the Corporate Rights
Ordinance). That Ordinance seeks to protect the authority of the Blaine Township
Board of Supervisors to adopt the first Ordinance, by establishing the rights and
powers that can be exercised by corporations within Blaine Township. Again, that
Ordinance declares that it was adopted and enacted “pursuant to the inherent
authority of the residents of Blaine Township to self-government” and reiterates
Article 1, Section 2 of the Pennsylvania Constitution, declaring that
[t]he foundation for the making and adoption of this law is the people’s fundamental and inalienable right to govern themselves, and thereby secure our rights to life, liberty, property, and pursuit of happiness.
See Corporate Rights Ordinance at §7.
The Ordinance then explains how the assertion of corporate constitutional
powers interferes with the authority of the people of Blaine Township to govern
themselves. Among other findings, the Board of Supervisors asserts that
[i]nterpretation of the U.S. Constitution by unelected Supreme Court justices to include corporations in the term “persons” has long denied the peoples’ exercise of rights by endowing corporations with constitutional privileges intended solely to protect the citizens of the United States or natural persons within its borders. Enforcement of those corporate “rights” by courts and governments has long wrought havoc on the peoples’ democratic process.
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See Corporate Rights Ordinance at §3(2).
The Township Board of Supervisors also asserts that
[u]surpation of the democratic process by corporations – and the few who run them – denies the rights of human persons to participate in their democracy in Blaine Township and enjoy a republican form of government therein.
See Corporate Rights Ordinance at §3(10).
Section 4 of the Ordinance succinctly declares that
[t]he specific purpose of this Ordinance is to guarantee to the residents of Blaine Township their right to a republican form of governance by refusing to recognize the purported constitutional rights of corporations. By doing so, the Board of Supervisors seeks to remedy current and future harms that corporations have caused – and will continue to cause – to the people of Blaine Township by the exercise of such “rights.”
See Corporate Rights Ordinance at §4.
Even this cursory review of the Ordinances adopted by the Blaine Township
Board of Supervisors – on behalf of the residents of Blaine Township – reveals that
the Ordinances assert the right of the people of Blaine Township to govern their own
municipality by establishing prohibitions on certain types of mining, and by
protecting that codification by challenging the exercise of certain corporate rights
and powers within their municipality.
A third Ordinance, adopted almost two years after the first two, is a disclosure
Ordinance, which sought to accomplish two goals – first, to guarantee that the
Township was privy to information necessary for the enforcement of other
Ordinances adopted by the municipality, and second, to ban corporations with a
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criminal history from doing business within the municipality. That Ordinance
explains that
The purpose of this Ordinance is to protect the health, safety, and welfare of Blaine Township residents by ensuring that the Township is informed about the nature of business being conducted by corporations within the municipality; and to guarantee that corporations doing business or planning to do business within Blaine Township are aware of all applicable taxes and do not have a history of consistent violations of law, and that corporations’ Principal Owners do not have a history of violating the law.
See Corporate Disclosure Ordinance at §3. That Ordinance also explains that one of the bases of authority for the passage
of the Ordinance is “the inherent, inalienable, and fundamental right of the citizens of
the Township of Blaine to self-government.” See Corporate Disclosure Ordinance at
§2. In addition, the Ordinance uses the Declaration of Independence and Article 1,
Section 2 of the Pennsylvania Constitution as authority for the Township’s exercise
of authority in this area. Id.
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II. Corporations are Created by State Governments as Subordinate, Public
Entities Through the Chartering Process; the Judiciary Has Empowered Them
with Constitutional Rights, and Corporations Routinely Wield Those Rights to
Deny the Rights of Communities to Govern Themselves.
(A) Corporations are Chartered by State Governments as Subordinate
Entities
The cause of the American Revolution was the systemic usurpation of the
rights of colonists by the English King and Parliament.21 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
carried out through ministerial bodies (such as the Lords of Trade, and later, the
Board of Trade) who imposed local “discipline” by nullifying locally adopted laws.
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. 22
The signing of the Declaration of Independence transformed crown
21 See, e.g., The Declaration of Independence , ¶1 et seq. (U.S. 1776) (listing the grievances of the colonists). 22 James K. Hosmer, Samuel Adams 212 (1885) stating that the English Parliament hoped that “the prosperity of the East India Company would be furthered, which for some time past, owing to the colonial non-importation agreements, had been obliged to see its tea accumulate in its warehouses, until the amount reached 17,000,000 pounds”.
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corporations and royal proprietorships into constitutionalized states. Elected State
legislators, possessing personal knowledge of the power of English trading
corporations,23 worked to ensure that corporations within the new nation would be
controlled and defined exclusively by legislatures.24
Accordingly, people made certain that legislatures issued charters, one at a
time and for a limited number of years.25 They kept a tight hold on corporations by
spelling out rules each business had to follow, holding business owners liable for
23 The East India Company, and its actions in other countries, features prominently in early colonial pamphlets. See, e.g., The Alarm, Number II (October 9, 1773) declaring that
the East India Company obtained their exclusive privilege of Trade to that Country, by Bribery and Corruption. Wonder not then, that Power thus obtained, at the Expence of the national Commerce, should be used to the most tyrannical and cruel Purposes. It is shocking to Humanity to relate the relentless Barbarity, practiced by the Servants of that Body, on the helpless Asiatics, a Barbarity fearce equaled even by the most brutal Savages, or Cortez, the Mexican Conquerer”.
24 Richard L. Grossman, Wresting Governing Authority from the Corporate Class:
Driving People into the Constitution, 1 Seattle J. for Soc. Just. 147, 149-150 (2002); Gregory A. Mark, The Personification of the Business Corporation in American
Law, 54 U. Chi. L. Rev. 1441 (1987). 25 See Louis K. Liggett Co., v. Lee, 288 U.S. 517 (1933) (Brandeis, J., dissenting), stating that “at first the corporate privilege was granted sparingly; and only when the grant seemed necessary in order to procure for the community some specific benefit otherwise unattainable.” Answering the question of why incorporation for business was commonly denied long after it had been freely granted for religious, educational, and charitable purposes, Justice Brandeis answered: “It was denied because of fear. Fear of encroachment upon the liberties and opportunities of the individual. Fear of the subjection of labor to capital. Fear of monopoly. Fear that absorption of capital by corporations, and their perpetual life, might bring evils similar to those which attended mortmain. There was a sense of some insidious menace inherent in large aggregations of capital, particularly when held by corporations.”
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harms or injuries, and revoking corporate charters.26
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.27 Towns routinely promoted agriculture and
manufactures. They subsidized farmers, public warehouses, and municipal markets,
protected watersheds, and discouraged overplanting.28
Legislatures also chartered profit-making corporations to build turnpikes,
canals, and bridges, declaring that corporations could only be chartered for “public
purposes.”29 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,
26 For a summary of the history of early citizen control of corporations, see Richard L. Grossman and Frank T. Adams, Taking Care of Business: Citizenship and the
Charter of Incorporation 6-18 (5th Ed. 2002); See also, Adolf A. Berle and Gardiner C. Means, The Modern Corporation and Private Property (1933); Edwin Merrick Dodd, American Business Corporations Until 1860 (1934); Louis Hartz, Economic
Policy and Democratic Thought, Pennsylvania, 1776-1860 (1948); and Thomas Frost, A Treatise on the Incorporation and Organization of Corporations 1 (1908). 27 Oscar Handlin and Mary Flug Handlin, Commonwealth: A Study of the Role of
Government in the American Economy, Massachusetts 1774-1861 125 (1969). 28 Id. at 65-66. 29 Robert Hamilton, The Law of Corporations 6 (1991).
59
they would control jobs and markets, buy the newspapers, and dominate elections
and the courts.30
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.31
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
30 Richard L. Grossman and Frank T. Adams, Taking Care of Business: Citizenship
and the Charter of Incorporation 14 (2002) (quoting a New Jersey newspaper which declared that “the Legislature ought cautiously to refrain from increasing the irresponsible power of any existing corporations, or from chartering new ones,” else people would become “mere hewers of wood and drawers of water to jobbers, banks, and stockbrokers”); See Liggett Co. v. Lee, 288 U.S. 517, 565 (1933) (Brandeis, J., dissenting), explaining that “[t]hrough size, corporations. . . have become an institution – an institution which has brought such concentration of economic power that so-called private corporations are sometimes able to dominate the state”). 31 Richard L. Grossman and Frank T. Adams, Taking Care of Business: Citizenship
and the Charter of Incorporation 7 (2002).
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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 privileges
granted by such legislation.32
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:
32 A discussion of these and other laws can be found in Richard L. Grossman and Frank T. Adams, Taking Care of Business: Citizenship and the Charter of
Incorporation 6-9 (2002); See also Gregory A. Mark, The Personification of the Business Corporation in American Law, 54 U. Chi. L. Rev. 1441 (1987).
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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 when it does so.33
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
33 See, e.g., People v. North River Sugar Ref. Co., 24 N.E. 834, 835 (NY 1890) (explaining that the court must determine whether a corporation has “exceeded or abused its powers” and if so, whether “that excess or abuse threatens or harms the public welfare”); Wilmington City Railway Co. v. People’s Railway Co., 47 A. 245, 248 (Del. Ch. 1900) (proclaiming that the remedy of quo warranto extends back to “time whereof the memory of man runneth not to the contrary”).
All fifty states, plus the District of Columbia, have retained fragments of quo warranto laws. The authority over the creation and dissolution of corporations has also always been a legislative power. See Thomas Linzey, Awakening a Sleeping
Giant: Creating a Quasi-Private Cause of Action for Revoking Corporate Charters
in Response to Environmental Violations, 13 Pace Envtl. L. Rev. 219, 223 (1995). Contemporary attempts to enforce portions of those laws, which at most offer a remedy solely for the “misuse and abuse” of a corporate charter by a single giant corporation, have been unsuccessful. See, e.g., CELDF v. WMX, Technologies, et al., 1074 M.D. 1996 (Commonwealth Court of Pennsylvania 1997); and William Wynn,
ex. rel., v. Philip Morris, Inc. et al. 51 F. Supp. 2d 1232 (N.D. Ala. 1999).
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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.34 The United
States Supreme Court has repeatedly reaffirmed the fundamental principle that
corporations are “creatures of the state” in a myriad of rulings.35 It is also well-settled
34 See St. Louis, I.M. & S Ry. Co. v. Paul, 173 U.S. 404 (1899) (declaring that corporations are “creations of state”); Bank of Augusta v. Earle, 38 U.S. 519, 520 (1839) (stating that “corporations are municipal creations of states”); United States v.
Morton Salt Co., 338 U.S. 632, 650 (1950) (explaining that corporations “are endowed with public attributes. They have a collective impact upon society, from which they derive the privilege as artificial entities”); Hale v. Henkel, 201 U.S. 43, 75 (1906) (declaring that “the corporation is a creature of the state. It is presumed to be incorporated for the benefit of the public. . . . Its rights to act as a corporation are only preserved to it so long as it obeys the laws of its creation”); Chincleclamouche
Lumber & Broom Co. v. Commonwealth, 100 Pa. 438, 444 (Pa. 1881) (stating that “the objects for which a corporation is created are universally such as the government wishes to promote. They are deemed beneficial to the country”); See also, People v. North River Sugar Refining Company, 24 N.E. 834, 835 (NY 1890) (declaring that “[t]he life of a corporation is, indeed, less than that of the humblest citizen. . .”); F.E. Nugent Funeral Home v. Beamish, 173 A. 177, 179 (Pa. 1934) (declaring that “[c]orporations organized under a state’s laws. . . depend on it alone for power and authority”); People v. Curtice, 117 P. 357, 360 (Colo. 1911) (declaring that “[i]t is in no sense a sovereign corporation, because it rests on the will of the people of the entire state and continues only so long as the people of the entire state desire it to continue”). 35 See, e.g., Virginia Bankshares v. Sandberg, 501 U.S. 1083, 1093 (1991); Kamen v.
Kember Fin. Servs., 500 U.S. 90, 99 (1991); Braswell v. United States, 487 U.S. 99, 105 (1988); Burks v. Lasker, 441 U.S. 471, 478 (1979) (declaring that “corporations are creatures of state law [] and it is state law which is the font of corporate directors’ powers”); First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978); Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 479 (1977); Cort v. Ash, 422 U.S. 66, 84 (1975); United Steelworkers of America v. R.H. Bouligny, Inc., 382 U.S. 145, 147 (1965); Shapiro v. United States, 335 U.S. 1, 66 (1948); Ferry v. Ramsey, 277 U.S. 88, 96-97 (1928); Essgee Co. of China v. United States, 262 U.S. 151, 155 (1923);
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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).
James Baird Weaver, an 1892 Presidential candidate, pronounced the states’
chartering of corporations similar to the issuance of Letters of Marque, which were
used to empower private warships to prey on foreign shipping:
Our government has chartered thousands of corporations, turned them loose upon us and now permits them to commit from year to year... outrages upon our people. These charters are neither more nor less than letters of marque, authorizing those who hold them to prey upon the commerce of the country, and they are the forerunners of something still more serious if they be not speedily recalled and the evils they entail quickly remedied.
James Baird Weaver, A Call to Action 268 (1892). 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 right to self-
government.
Yazoo & M.V.R.Co. v. Clarksdale, 257 U.S. 10, 26 (1921); United States v. American
Tobacco Co., 221 U.S. 106, 142-143 (1911); Wilson v. United States, 221 U.S. 361, 383 (1911); Hale v. Henkel, 201 U.S. 43 (1906); Terre Haute & I.R.Co. v. Indiana, 194 U.S. 579, 584 (1904); Fidelity Mut. Life Asso. v. Mettler, 185 U.S. 308 327 (1902); Hancock Mut. Life Ins. Co. v. Warren, 181 U.S. 73, 76 (1901); Jellenik v. Huron Copper Mining Co., 177 U.S. 1, 11-13 (1900); Woodruff v. Mississippi, 162 U.S. 291, 299, 309 (1896); Philadelphia & Southern Mail S.S. Co. v. Pennsylvania, 122 U.S. 326 (1887); Sinking-Fund Cases, 99 U.S. 700, 718 (1878); Railroad Co. v. Maryland, 88 U.S. 456, 469, 471 (1874); Dodge v. Woolsey, 59 U.S. 331 (1855); Bank of Augusta v. Earle, 38 U.S. 519, 520 (1839); Briscoe v. President & Directors
of Bank of Kentucky, 36 U.S. 257, 328 (1837).
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(B) 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, the judiciary has conferred constitutional protections -
once intended to protect only natural persons - upon corporations.36 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.
36 As a general principal of justice, rights have long been understood to accrue to the living, and not to the dead, nor to inanimate matter. Thomas Paine’s Common Sense
(1776), credited with inspiring the popular call for American independence, argued that hereditary government and the rule of the dead over the living - expressed as oppressive legal precedent - defined the “old form” of government, while deference to the rights of the living characterized the new. See also Thomas Jefferson, who asked:
Can one generation bind another, and all others, in succession forever? I think not. The Creator made the earth for the living, not the dead. Rights and powers can belong only to persons, not to things, not to mere matter unendowed with will. The dead are not even things…To what then are attached the rights and powers they held while in the form of men? A generation may bind itself as long as its majority continues in life; when that has disappeared, another majority is in its place, holding all the rights and powers their predecessors once held, and may change their laws and institutions to suit themselves. Nothing then is unchangeable but the inherent and inalienable rights of man!
Thomas Jefferson, Letter to Major John Cartwright, (June 5, 1824).
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1. “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 at last recognize the rights of newly freed
slaves, whom the drafters of the Constitution had failed to define as “persons.”37
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.
37 The framers of the Constitution codified slavery in Article I, §2 (apportioning slaves as equivalent to three-fifths of a person for purposes of representation), Article I, §9 (ensuring that importation of slaves would be legal until at least 1808), and Article IV, §2 (declaring that “[n]o person held in Service or Labour in one State, under the laws thereof, escaping into another, shall, in Consequence of any regulation therein, be discharged from such Service of Labour, but shall be delivered up on Claim of the Party to whom such Service of Labour may be due”); The 1793 and 1850 Fugitive Slave Acts were adopted to further those constitutionally embedded property rights of slave owners. Those Acts paid a reward - from public monies - to federal marshals for each slave captured, prohibited any trial by jury for the slave, and prohibited the slave from testifying at any hearing held under the Acts. See The Avalon Project at Yale Law School, The Fugitive Slave Act of 1850 (2002). It is also important to remember that “[t]he denial of human rights was etched into the American Colonies’ first attempts at establishing self-government. . . . The self-evident truths and the unalienable rights were intended to apply only to white men.” Regents of the University of California v. Bakke, 438 U.S. 265, 388-89 (1978) (Marshall, J., concurring).
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The guarantees of the Fourteenth Amendment have been expanded to include a litany
of personal liberty rights.38
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 and the fortification of chartered business
corporations as bastions of private power able to undermine 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 other
38 See, e.g., Plyler v. Doe, 457 U.S. 202 (1982) (expanding Fourteenth Amendment guarantees to illegal aliens residing in the United States); Poe v. Ullman, 367 U.S. 497, 516 (1961) (Douglas, J., dissenting) (declaring that “[w]hen the Framers wrote the Bill of Rights, they enshrined in the form of constitutional guarantees those rights – in part substantive, in part procedural – which experience indicated were indispensable to a free society”); Meyer v. State of Nebraska, 262 U.S. 390, 399 (1923) (declaring that the Fourteenth Amendment “denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men”).
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property within the County. Attorneys for the railroad companies argued that by
taxing their property differently from the property of natural persons or other entities,
California violated corporate “rights” newly 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.39
39 Howard J. Graham, The ‘Conspiracy Theory’ of the Fourteenth Amendment, 47 Yale L. J. 371 (1938) (explaining that Conkling’s argument was baseless, stating that his argument constituted the “still almost incredible, misquotation and forgery. . . [because] nowhere does Conkling explicitly say that the Committee regarded corporations as ‘persons’; nowhere does he say that the members framed the due process and equal protection clauses with corporations definitely in mind. . . nor [did] anyone at any time or under any circumstances, so far as the historical record indicates, ever use the word ‘citizen’ in any draft of the equal protection or due process clause.” Graham adds that in Conkling’s argument, he explicitly admitted that “those who devised the 14th Amendment may have builded better than they
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The parties settled San Mateo before the Supreme Court announced a decision
in the case. 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.40 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,
knew” and that Conkling “misquoted the original Journal in his argument, and it is almost impossible to believe that he did not do this intentionally”) (emphasis added). 40 Howard J. Graham, Builded Better Than They Knew, 17 U. Pitt. L. Rev. 537 (1956). While Chief Justice Waite’s announcement was not part of the written opinion in Santa Clara, courts have repeatedly upheld the proposition that corporations are “persons” for purposes of Fourteenth Amendment protections. The U.S. Supreme Court has reiterated and reinforced the Santa Clara holding in a myriad of cases. See, e.g. Minneapolis & St. Louis Railroad Company v. Beckwith, 129 U.S. 26, 28 (1889) (declaring that “we admit the soundness” of the position of Santa Clara); Covington & L. Turnpike Road Co. v. Sandford, 164 U.S. 578, 592 (1896) (declaring that “it is now settled that corporations are persons, within the meaning of the constitutional provisions forbidding the deprivation of property without due process of law, as well as a denial of the equal protection of the laws”), Smyth v. Ames, 169 U.S. 466, 522 (1898) (declaring “that corporations are persons within the meaning of this amendment is now settled”), Hale v. Henkel, 201 U.S. 43 (1906) (declaring that the principle that “corporations are, in law, for civil purposes, deemed persons, is unquestionable”); Kentucky Finance Corporation v. Paramount
Auto Exchange Corporation, 262 U.S. 544, 550 (1923) (declaring that “a state has no more power to deny to corporations the equal protection of the law than it has to individual citizens”); Power Mfg. Co. v. Saunders, 274 U.S. 490, 493 (1927) (stating that Equal Protection guarantees “extend to corporate, as well as natural persons”).
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28 (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.41
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.42
41 Several United States Supreme Court justices have authored extensive dissenting opinions challenging the discovery of corporations in the Fourteenth Amendment. See Connecticut General Life Insurance Co. v. Johnson, 303 U.S. 77, 85-90 (1938) (Black, J., dissenting) (declaring that “[n]either the history nor the language of the Fourteenth Amendment justifies the belief that corporations are included within its protection”); Wheeling Steel Corp. v. Glander, 337 U.S. 562, 576-581 (1949) (Douglas, J., and Black, J., dissenting) (declaring that “I can only conclude that the Santa Clara case was wrong and should be overruled”); See also, Hale v. Henkel, 201 U.S. 43, 78 (1906) (Harlan, J., concurring) (declaring that “in my opinion, a corporation – an artificial being, invisible, intangible, and existing only in contemplation of law – cannot claim the immunity given by the 4th Amendment; for it is not a part of the “people” within the meaning of that Amendment. Nor is it embraced by the word “persons” in the Amendment”); Bell v. Maryland, 378 U.S. 226, 263 (1964) (Douglas, J., dissenting) (declaring that “[t]he revolutionary change effected by affirmance in these sit-in cases would be much more damaging to an open and free society than what the Court did when it gave the corporation the sword and shield of the Due Process and Equal Protection Clauses of the Fourteenth Amendment”); First National Bank of Boston v. Bellotti, 435 U.S. 765, 822 (1978) (Rehnquist, J., dissenting) (declaring that “[t]his Court decided at an early date, with neither argument nor discussion, that a business corporation is a ‘person’ entitled to the protection of the Equal Protection Clause of the Fourteenth Amendment”). 42 During this period, legal theorists sought to legitimate corporations as having natural rights. According to Professor Morton Horwitz, “[b]eginning in the 1890’s
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2. “Finding” Corporations in 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.43 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."44
and reaching a high point around 1920, there is a virtual obsession in the legal literature with the question of corporate personality. Over and over again, legal writers attempted to find a vocabulary that would enable them to describe the corporation as a real or natural entity whose existence is prior to, and separate from, the state.” Morton J. Horwitz, The Transformation of American Law 1870-1960 101 (1992). Professor Horwitz explains that “[t]he basic problem of legal thinkers after the Civil War was how to articulate a conception of property that could accommodate the tremendous expansion in the variety of forms of ownership spawned by a dynamic industrial society. . . The efforts by legal thinkers to legitimate the business corporation during the 1890’s were buttressed by a stunning reversal in American economic thought – a movement to defend and justify as inevitable the emergence of large-scale corporate concentration.” Id. at 80, 145. 43 Philip B. Kurland and Ralph Lerner, eds., The Founders’ Constitution 425 (1987). 44 Franklin D. Roosevelt, The Public Papers and Addresses of Franklin D. Roosevelt 366 (1941).
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(a). “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.45
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. 735 at 809 (White, J., dissenting).
Courts since Bellotti have explored the contorted metes and bounds of
45 First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978); See Bellotti at 822 (Rehnquist, J., dissenting) (declaring that “the Congress of the United States, and the legislatures of 30 other States of this Republic have considered the matter, and have concluded that restrictions upon the political activity of business corporations are both politically desirable and constitutionally permissible”). The Bellotti decision overturned “similar laws in thirty other states, thus facilitating corporate speech on public policy issues and establishing a legal principle of the corporation’s rights” to protections afforded by the First Amendment. Dan Kennedy, “Silent Swoosh,” Boston Phoenix (May 2, 2003).
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political46, commercial47 and negative corporate48 speech rights without revealing
why or how the Constitution compels the conclusion that corporations must be
protected and empowered by the First Amendment.49 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
46 See, e.g., Jacobus v. State of Alaska, 338 F. 3d 1095, 1121 (9th Cir. 2003) (declaring that “corporations have rights under the First Amendment” and then proceeding to a discussion of the extent of those rights in electoral activities, without explaining the underlying justification for the conferral of rights). 47 See, e.g., Central Hudson Gas & Electric Corp., v. Public Utilities Comm’n, 447 U.S. 557 (1980) (declaring that a state regulation banning all utility corporations from promoting the use of electricity in advertisements – adopted during the mid-1970’s energy crisis – violated the “commercial speech” of the corporation, while failing to explain the underlying justification for the conferral of First Amendment rights upon corporations); See also, Virginia Board of Pharmacy v. Virginia Citizens
Consumer Council, Inc., 425 U.S. 748 (1976) (declaring unconstitutional a Virginia statute that prohibited price advertising of prescription drugs). 48 See, e.g., Pacific Gas & Elec. Co. v. Public Utilities Comm’n, 475 U.S. 1 (1986) (declaring that the First Amendment created a corporation’s “negative speech” rights, which prevented utility ratepayers from using empty space within the monthly billing envelopes, without discussing the justification for the judicial conferral of First Amendment rights); But see, Id. at 25 (Rehnquist, J., dissenting) (declaring that “[n]or do I believe that negative free speech rights, applicable to individuals and perhaps the print media, should be extended to corporations generally”). 49 But see, Salyer Land Co. v. Tulare Lake Basin Water Stor. District, 410 U.S. 719, 741 (1973) (Douglas, J., dissenting) (declaring that “it is unthinkable in terms of the American tradition that corporations should be admitted to the franchise. . . the result [would be] a corporate political kingdom”).
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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
people to information necessary to inform decisions about self-government.
(b). “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 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
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the people.50 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.
(c). “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
50 See, e.g., Dow Chemical Corporation v. U.S., 476 U.S. 227 (1986) (ruling that the Dow Chemical Corporation was entitled to expansive Fourth Amendment protections when the Environmental Protection Agency flew planes over the corporation’s manufacturing facilities to ensure compliance with the Clean Air Act. Instead of explaining why the corporation was entitled to Fourth Amendment protections, the Court struck the challenge on the basis that the overflights were not “searches”); See also, Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 196 (1946); California Bankers Assn. v. Shultz, 416 U.S. 21 (1974); Federal Trade Comm’n v. American
Tobacco Co., 264 U.S. 298, 307 (1924); Consolidated Rendering Co. v. Vermont, 207 U.S. 541, 553 (1908); Go-Bart Co. v. United States, 282 U.S. 344, 356 (1931); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920).
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Secretary without extending due process of law to the corporation.51 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.52 The Court “found” corporations in the Double Jeopardy Clause in Fong
Foo v. United States, 369 U.S. 141, 143 (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.53
51 Even prior to Noble, however, the United States Supreme Court had implicitly found that corporations were entitled to constitutionally derived due process rights under the Fifth Amendment. See United States v. Union Pac. R.Co. 98 U.S. 569, 606, 616 (1878) (holding that Congressional action to recover public monies invested in the Union Pacific Railroad Company circumvented due process guarantees for the corporation and its managers); Sinking-Fund Cases, 99 U.S. 700, 718-19 (1878) (holding that Congress, “equally with the States, [is] prohibited from depriving persons or corporations of property without due process of law”); and Newport and
Cincinnati Bridge Co. v. United States, 105 U.S. 470, 480 (1881) (holding that a chartered bridge corporation possessed a vested right that could not arbitrarily be removed by an Act of Congress). 52 Mahon is most often cited by the legal community for the proposition that environmental regulations may “take” property under the Fifth Amendment, resulting in the necessity of compensation for the property owner. Mahon, however, is the first case in which the Court declared that the Fifth Amendment mandated that corporations be compensated for the diminishment in property value resulting from the application of regulations seeking to protect the health, safety, and welfare of people and the natural environment. 53 In Fong Foo, the Standard Coil Products Corporation was indicted for “knowingly and willfully” falsifying, and conspiring “with others to falsify, tests of radiosondes (electronic devices for furnishing weather data) being manufactured” for the Army Signal Supply Agency. See In the Matter of United States of America, 286 F.2d 556, 564 (1st Cir. 1961) (lower court decision); See also United States v. Martin Linen
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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 self-
government.
3. “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." (U.S. 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.54 The citizens of New Hampshire had
decided that public universities were a prerequisite to maintaining self-government,55
Supply Co., 430 U.S. 564 (1977) (holding in favor of a textile corporation that invoked the double jeopardy clause of the Fifth Amendment to avoid retrial in a criminal antitrust action). 54 Dartmouth College v. Woodward, 4 Wheat. 518 (1816). 55 See New Hampshire Const., Art. 83 (declaring that “knowledge and learning. . . being essential to the preservation of a free government . . .it shall be the duty of the legislators and magistrates . . . to cherish the interests of literature and the sciences, and all seminaries and public schools”); Meyer v. State of Nebraska, 262 U.S. 390, 400 (1923) (declaring that “[t]he American people have always regarded education
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and the New Hampshire Supreme Court had vindicated the people’s authority to
transform the College.56
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." (U.S. Const. art. I, § 8.) The Supreme Court has concocted, within the
Commerce Clause, a "Dormant Commerce Clause" that enables corporations to use
and the acquisition of knowledge as matters of supreme importance which should be diligently promoted. The Ordinance of 1787 declares ‘Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged’”). 56 Nathaniel Adams, Reports on Cases Argued and Determined in the Superior Court
of Judicature for the State of New Hampshire 135 (1819) (quoting Chief Justice William M. Richardson, author of the New Hampshire Supreme Court decision in Dartmouth, who declared for the Court that:
I cannot bring myself to believe, that it would be consistent with sound policy, or ultimately with the true interests of literature itself, to place the great public institutions, in which all the young men, destined for the liberal professions, are to be educated, within the absolute control of a few individuals, and out of the control of the sovereign power – not consistent with sound policy, because it is a matter of too great moment, too intimately connected with the public welfare and prosperity, to be thus entrusted in the hands of a few. The education of the rising generation is a matter of the highest public concern, and is worthy of the best attention of every legislature. . . . We are therefore clearly of opinion, that the charter of Dartmouth College, is not a contract, within the meaning of this clause in the Constitution of the United States).
See Peter Kellman, “You’ve Heard of Santa Clara, Now Meet Dartmouth,” Defying
Corporations, Defining Democracy 89 (2001) (explaining that “[a]n important component of republican philosophy is that a republican form of government requires an educated populace. These republicans wanted to insure that a college education would be available for their children, and that the content of education would be determined by a public process, not a private one”) (emphasis in original).
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the Courts to overturn state laws adopted to protect the health, safety, and welfare of
people and communities.57
Courts have avoided, however, any discussion of how Commerce and
Contracts rights, wielded by corporations, enable corporate managers to strike down
laws fashioned by majorities – thus negating the Constitutional guarantee of a
republican government.
(C) Corporations Routinely Use Those Constitutional Rights to Deny
Communities Their Right to Local Self-Governance
1. How Corporate First Amendment Rights are Used to Deny
Peoples’ Right to Self-Governance
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
57 For a case history of how the Commerce Clause was wielded in the 1880’s by oleomargarine corporations and the Courts to strike down state laws regulating the manufacture and sale of oleomargarine, see Jane Anne Morris, Gaveling Down the
Rabble 1-3 (2008). As Morris concludes, the Commerce Clause has served as the template for international trade agreements that empower international trade tribunals to nullify local, state, and national laws in the name of corporate commerce.
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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 who 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.58 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,59 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.
58 Jack Kittredge, Bovine Growth Hormone, Northeast Organic Farming Association of New York (2003) (http://www.nofany.org/hottopics/bovinegrowthhormone.html). 59 Id. (explaining that “[b]ecause rBGH injections can cause numerous ill effects in cows, veterinarians in Germany have refused to administer it to cows on the grounds that it violates their professional code of ethics, which forbids intentional harm to animals”).
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Six nonprofit corporations, all created, funded, and directed by dairy, grocery,
and food processing corporations, then sued the State of Vermont, demanding that
the labeling laws be overturned because they violated the corporations’ First
Amendment rights. Specifically, 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 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
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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.60 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
60 First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978).
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referenda process.61 Answering in the negative, the Massachusetts Court upheld the
constitutionality of the statute.62
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
61 The Massachusetts Supreme Court asked the precise question of “whether business corporations, such as the plaintiffs, have First Amendment rights coextensive with those of natural persons or associations of natural persons.” 371 Mass. 773, 783, 359 N.E.2d 1262, 1269 (Mass. 1977). 62 371 Mass. 773, 795, 359 N.E.2d 1262, 1282 (Mass. 1977).
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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.63
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
63 Central Hudson at 579. But see, Id. at 589 (Rehnquist, J., dissenting) (declaring that striking down the regulation was akin to the Court’s earlier role in striking down state minimum wage and worker protections under the doctrine of substantive due process, citing Lochner v. New York, 198 U.S. 45 (1905)); See also, Id. at 584 (Rehnquist, J., dissenting) (explaining that “[p]rior to this Court’s recent decision in Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976), however, commercial speech was afforded no protection under the First Amendment whatsoever”) (citations omitted).
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through a republican form of government, and created far-reaching adverse impacts
on human, ecological, and economic health.
2. How Corporate Privacy Rights are Used to Deny Peoples’ Right
to Self-Governance
As a result of the “finding” of corporations in the Fourth Amendment by the
judiciary, 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.64
Yet corporations have used judicially conferred privacy rights under the
Fourth Amendment to prevent the Secretary of Labor from protecting workers.
64 Jim Celenza, ‘A Most Essential Aspect of Production’ -- The Meaning of Workers’
Memorial Day, New Solutions: A Journal of Environmental and Occupational Health Policy 60 (Spring 1995). Celenza reports that the National Safety Council calculated in 1992 that the financial burden of workplace injury and illness was $115 billion a year. Id.
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Marshall v. Barlow's Inc., 436 U.S. 307 (1978), involved Section 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.”65
As in Hale66, 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
65 See, e.g., City of Cincinnati v. Morris Investment Co., 451 N.E.2d 259 (Hamilton Cty. Ohio 1982) (suppressing evidence of building code violations due to warrantless nature of inspection of corporate-owned building). 66 Hale v. Henkel, 201 U.S. 43 (1906).
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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 the 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).67
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.
67 See also United States v. Armco Steel Corporation, 252 F.Supp. 364, 367 (S.D. CA 1966) (declaring in a Sherman Anti-Trust Act enforcement action that “‘persons’, within the constitutional provision prohibiting subjection of any person to double jeopardy for the same offense, includes ‘corporations’”).
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3. How Corporate Fifth Amendment Rights are Used to Deny
Peoples’ Right to Self-Governance
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.
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4. How Corporate Commerce Clause and Contracts Clause Rights
are Used to Deny Peoples’ Right to Self-Governance
Corporations have also 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.68
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
68 Synagro-WWT, Inc. v. Rush Township, 204 F. Supp. 2d 827 (M.D. Pa. 2002); 299 F. Supp. 2d 410 (M.D. Pa. 2003)
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production and over 75% of beef production in these United States.69 While
corporations have been concentrating their ownership and control of livestock
production, they have eliminated over 300,000 farms 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.70
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,71 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
69 USDA Advisory Committee on Agricultural Concentration, Concentration in
Agriculture (1996). See also USDA National Commission on Small Farms, A Time
to Act (1998). 70 In 1962, the Committee for Economic Development – composed of corporate executives from AT&T Co., Sears, Roebuck, and Co., General Motors Co., and American Can Company – released a report in which they stated their goals as “reducing the number of people in agriculture” and “reducing the number of people committed for their livelihood to farming.” The Agriculture Subcommittee of the CED’s Research and Policy Committee included corporate executives from A. Hormel and Co., Brenton Companies, Inc., Jewel Tea Co., and Simonds-Shields-Theis Grain Co. See Committee for Economic Development, An Adaptive Program
for Agriculture: A Statement on National Policy by the Research and Policy
Committee of the Committee for Economic Development (1962). 71 In 2003, Iowa farmers were raising 26% of the nation’s total inventory of 58.9 million hogs. See Smithfield Foods, Inc. v. Miller, 367 F. 3d 1061 (8th Cir. 2003).
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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., 367 F.
3d 1061 (8th Cir. 2003). 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."72
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.73
Farming organizations, including the Iowa Farm Bureau, Iowa Pork Producers, and
the Iowa Farmers Union, joined community organizations such as Iowa Citizens for
72 Leesa Kiewel, Iowa Will Appeal Ruling on Packer Ban, www.cattleplus.com/New%20Cattleplus/pages/news/agn/11.html . 73 Open, competitive, and free markets through which individuals and families can secure a livelihood, are essential to protecting inalienable rights to life, liberty, and property. See, e.g., Charles A. Reich, Beyond the New Property: An Ecological View
of Due Process, 56 Brook. L. Rev. 731, 736 (1990); Meyer v. State of Nebraska, 262 U.S. 390, 399 (1923) (recognizing that the Fourteenth Amendment and other constitutional provisions guarantee the right “to engage in any of the common occupations of life. . . and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men”).
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Community Improvement to support the ban.74 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."75 Iowan U.S. Senator Tom Harkin reflected the belief of the majority
when he declared that “livestock production in our state should be in the hands of
independent producers."76
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
74 Iowa Farm Bureau Press Release, Farm Bureau Opposes Challenge to Iowa
Packer Ban (November 8, 2002). 75 Jerry Perkins, Smithfield Challenges Iowa Ban in Federal Court, Des Moines Register.com (December 17, 2002). 76 Cheryl Rainford, Iowa Court Blasts Iowa Packer Ownership, Agriculture Online (January 23, 2003).
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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
Corporation77 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 Iowa law, a decision which the federal appellate
court affirmed. Smithfield Foods. Inc., 367 F. 3d 1061 (8th Cir. 2003).
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
77 Through integration of livestock ownership and meat processing, Virginia-based Smithfield Foods, Inc. now dominates hog production – owning 12 million hogs and processing 20 million hogs annually – calling itself "the world's largest pork processor and hog producer." Smithfield Foods, Inc. v. Miller, 367 F. 3d 1061 (8th Cir. 2003). At the time of the lawsuit, Smithfield Corporation and three other meatpacking corporations controlled 60% of the processing market, up from 34% in 1989.
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farmland or engaging in farming.78 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 ban
certain corporations from engaging in agriculture within the State violated the
Commerce Clause.79
(D) The Plaintiff Corporations are Attempting to Use Government-
Conferred Constitutional Powers to Nullify Blaine Township’s Exercise of
Community Self-Governance
In this case, two coal corporations possessing interests in a coal seam
underlying Blaine Township, are asserting that a variety of corporate constitutional
“rights” have been violated by the Township’s adoption of Ordinances. The
Ordinances under challenge ban those corporations from engaging in mining within
78 Similar laws have been adopted by nine Midwestern states – which produce over 30% of this nation’s agricultural output. The laws were first adopted in Oklahoma in 1904, and have been upheld against due process and equal protection constitutional challenges in the United States Supreme Court. See Asbury Hospital v. Cass County, N.D., 326 U.S. 207 (1945). In addition, twelve municipal governments in Pennsylvania have adopted similar municipal laws, which have also been challenged by agribusiness interests wielding the Fourteenth Amendment, Contracts, and Commerce Clauses. See Leese v. Belfast Township Board of Supervisors, No. 304 of 2001-C (Fulton County, Pennsylvania, Court of Common Pleas 2001). 79 South Dakota Farm Bureau, Inc., et al., v. Hazeltine, et al., 340 F. 3d 583 (8th Cir. 2003).
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the municipality, and declare that corporations do not possess certain legal rights and
protections within the municipality. In addition, the coal corporations have
challenged a third Ordinance, one which requires them to disclose the extent of their
activities to the Board of Supervisors of Blaine Township.
The fifteen Counts allege, among others, that the Township has violated the
corporations’ rights under the Commerce Clause (Complaint at ¶¶64-89); under the
Contracts Clause (Complaint at ¶¶90-98); under the First Amendment (Complaint at
¶¶99-105); under the Fifth Amendment (Complaint at ¶¶106-132; ¶¶142-156); and
under the Fourteenth Amendment (Complaint at ¶¶133-141). The other Counts of the
Complaint claim that the municipality is preempted by State law from adopting the
Ordinances, and that the Ordinances are generally unconstitutional. See Counts XI,
XII, XIII, XIV, and XV. Those claims depend upon the various constitutional claims
for the satisfaction of constitutional “standing” requirements necessary as a
prerequisite for the suit.
Blaine Township has explicitly found that the existence of, and assertion of,
corporate constitutional “rights” violates the framework of democratic self-
governance. In one of the Ordinances, the Township Supervisors explicitly declare
that:
(2) Interpretation of the U.S. Constitution by unelected Supreme Court justices to include corporations in the term “persons” has long denied the peoples’ exercise of rights by endowing corporations with constitutional privileges intended solely to protect the citizens of the
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United States or natural persons within its borders. Enforcement of those corporate “rights” by courts and governments has long wrought havoc on the peoples’ democratic process;
(3) Interpretation of the U.S. Constitution by Supreme Court justices to afford corporations the protections of the Commerce Clause (Article I, §8 of the Constitution of the United States) and the Contracts Clause (Article I, §10 of the Constitution of the United States) has prevented communities and governments from securing the health, safety, welfare, and rights of citizens and natural persons;
(4) This illegitimate judicial bestowal of civil and political rights upon corporations prevents the administration of laws within Blaine Township and usurps basic human and constitutional rights guaranteed to the people of Blaine Township;
(5) The illegitimate judicial designation of corporations as “persons” and the bestowal of constitutional rights upon corporations traditionally empowers corporations to sue municipal governments for adopting laws that violate corporate “rights”;
. . .
(10) Usurpation of the democratic process by corporations – and the few who run them - denies the rights of human persons to participate in their democracy in Blaine Township and enjoy a republican form of government therein;
(11) The ability of citizens of Blaine Township to adopt laws to protect the health, safety, and welfare of township residents has been denied by the wielding of constitutional “rights” by corporations. The ability of the Blaine Township Board of Supervisors to guarantee to residents a republican form of governance has been, and will be, denied by the wielding of constitutional “rights” by corporations.
Section 4. Specific Purpose. The specific purpose of this Ordinance is to guarantee to the residents of Blaine Township their right to a republican form of governance by refusing to recognize the purported constitutional rights of corporations. By doing so, the Board of Supervisors seeks to remedy current
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and future harms that corporations have caused - and will continue to cause - to the people of Blaine Township by the exercise of such “rights.”
Section 5. Statement of Law. Within Blaine Township, corporations shall not be “persons” under the United States or Pennsylvania Constitutions, or under the laws of the United States, Pennsylvania, or Blaine Township, and so shall not have the rights of persons under those constitutions and laws. In addition, within the Township of Blaine, no corporation shall be afforded the privileges, powers, and protections of the Contracts Clause or Commerce Clause of the United States Constitution, or of similar provisions from the Pennsylvania Constitution.
See Corporate Rights Ordinance at §§1,4,5.
This case, therefore, pits the “rights” of corporations directly against the rights
of the residents of a municipality to protect their health, safety, and welfare. Whereas
private corporations have been endowed with a full range of constitutional “rights”
with corresponding prohibitions on governments from interfering with those rights,
municipal governmental corporations have been held to be completely subordinate to
the State government.
Emanating from the Dartmouth College decision, that “well-settled” legal
principle holds that private corporations have incorporators who enter into a contract
with the State for incorporation, while municipal corporations have no incorporators,
and thus, no contract can be legally breached when the State further limits the
authority of municipalities.80 Thus, subsequent courts have been able to argue that
when the State imposes new preemptive laws on a municipality or changes its
80 Dartmouth College v. Woodward, 4 Wheat. 518 (1816).
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charter, the State has not impaired the rights of residents or the municipality.
Professor Hendrik Hartog explained Justice Washington’s opinion in Dartmouth
College this way:
What made local governments public institutions was that the state created them on its own initiative, and that there was ‘no other founder or visitor than the king or government.’ If the charters of such institutions were amended by the unilateral acts of the legislature, ‘such legislative interferences cannot be said to impair the contract by which the corporation was formed, because there is in reality but one party to it,’ and that was the state.
Hendrik Hartog, Public Property and Private Power: The Corporation of the City of
New York in American Law, 1730-1870 194-195(1983).
That such local government could be established where people live, and that
it can be altered or dissolved without the consent of the governed, seemed not to
trouble the Court so long as the U.S. Constitution’s Contracts Clause was not
offended. The judges did not consider the People to be a party to the contract, if
that is what an incorporating charter was henceforth to be. Nor, apparently, did
they consider the people living within municipal jurisdictions to have self-
governing rights worth protecting, unless they were attached to rights in property.
Since Dartmouth, the Courts have stripped the authority of the people to
govern corporations as creatures of State government, while at the same time, they
have stripped municipal corporations of the authority to serve as instruments for
community self-government by citizens. What has been left to municipalities is a
tentative power to enforce the “law of the land,” as merely local administrators of
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State law, against private self-governing corporations empowered with the rights and
privileges of super citizens. The outcomes of that matchup are all too familiar to
citizens living in municipal jurisdictions who attempt to decide health, safety,
welfare, and quality of life issues for their communities, families, and natural
environments. Predictably, the results are unfavorable to the municipal tenants,
deprived as they are of corporate membership in the municipal corporations within
which boundaries they reside. This is the forecast, however, for the residents of
Blaine Township, absent a judicial ruling to the contrary.
III. It Was Beyond the Authority of the Federal and State Governments to
Bestow Constitutional Rights Upon Corporations Because Governments are
Created to Secure the Rights of People, Not Deny Them. Under this Scheme of
Law, Governments are Denying Rights Indirectly When They are Prohibited
from Denying Rights Directly.
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 self-
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,
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Governments are instituted among Men, deriving their just powers from the consent of the governed.81
The Declaration of Independence, ¶1 (U.S. 1776)(emphasis added).
That principle, echoed by this nation’s colonists throughout the Resolves of
the Continental Congress,82 early state Constitutions,83 and the Articles of
Confederation,84 is reflected throughout the writings of Locke, Hume, and
81 As Supreme Court Justice Thurgood Marshall once observed, however, while the Founding Fathers accurately described the people’s inalienable rights, they failed to extend those rights to all people. In the Bakke decision, Marshall explained that “[t]he denial of human rights was etched into the American Colonies’ first attempts at establishing self-government. . . . The self-evident truths and the unalienable rights were intended to apply only to white men.” Regents of the University of California v.
Bakke, 438 U.S. 265, 388-89 (1978) (Marshall, J., concurring). 82 Continental Congress, Declaration of Resolves, (Oct. 14, 1774) (stating that colonial representatives “in behalf of themselves, and their constituents, do claim, demand, and insist on, as their indubitable rights and liberties; which cannot be legally taken from them, altered or abridged by any power whatsoever. . .” ). 83 See, e.g., Virginia Constitution, (June 29, 1776) (declaring that “some regular adequate Mode of civil Polity [must be] speedily adopted” to reverse the “deplorable condition to which this once happy Country” has been reduced); Virginia Declaration of Rights (June 21, 1776) (stating that “all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot. . . deprive or divest their posterity; namely, the enjoyment of life and liberty. . . and pursuing and obtaining happiness and safety”); Massachusetts Constitution (March 2, 1780) (proclaiming that “the end of the institution, maintenance and administration of government, is to secure the existence of the body politic; to protect it; and to furnish the individuals who compose it, with the power of enjoying, in safety and tranquility, their natural rights, and the blessings of life”). 84 Articles of Confederation (March 1, 1781) (declaring that the “said states hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their Liberties, and their mutual and general welfare”).
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Montesquieu85 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.86
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:
85 Those democratic philosophies were, in turn, fomented by widespread Tudor rebellions and urban insurrections driven by popular movements that arose in England against monarchy and nobility. In response to expropriation, enclosures of the commons, impressments, enslavement, industrial exploitation, and unprecedented military mobilizations, England experienced the Cornish Rising (1497), the Lavenham Rising (1525), the Lincolnshire Rebellion (1536), the Ludgate Prison Riot (1581), the Beggars’ Christmas Riot (1582), the Whitsuntide Riots (1584), the Plaisterers’ Insurrection (1586), the Felt-Makers Riot (1591), Bacon’s Rebellion in the Virginia Colony (1675-1676) and others. See Peter Linebaugh and Marcus Rediker, The Many-Headed Hydra: Sailors, Slaves, Commoners, and the Hidden
History of the Revolutionary Atlantic 19, 136 (2000). “Years of attendance at town meetings had attuned the majority to elementary concepts, if not to detailed systems; to the idea of a state of nature, of a social compact, and of consent of the governed.” Oscar Handlin and Mary Flug Handlin, Commonwealth: A Study of the Role of
Government in the American Economy, Massachusetts 1774-1861 6-7 (1969). 86 In demanding independence, the colonists abandoned other remedies that fell short of creating a new nation, including a request for representation in the English parliament and other proposals that continued to recognize the English King as the Sovereign. See, e.g., Letter from the House of Representatives of Massachusetts to
Henry Seymour Conway, (Feb. 13, 1768) (declaring that “[t]he people of this province would by no means be inclined to petition the parliament for representation”) (reprinted in Harry Alonzo Cushing, ed., The Writings of Samuel
Adams 191 (1968)).
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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 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.
U.S. Const. preamble (1789) (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
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Declaration of Independence into the Constitution.87 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.88 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 guarantees of self-government, and that the right
to that form of government is a separate guarantee.89 That right guarantees that the
87 See Howard J. Graham, Our ‘Declaratory’ Fourteenth Amendment, 7 Stan. L. Rev. 3, 5 (1954) (“More and more, Section One is seen to have been a synthesis of the three clauses and concepts which spearheaded the organized antislavery movement’s constitutional attack on slavery and racial discrimination”); 88 Robert J. Reinstein, Completing the Constitution: The Declaration of
Independence, Bill of Rights and Fourteenth Amendment, 66 Temple L. Rev. 361, 378-79 (1993); See also, Howard J. Graham, “The Early Antislavery Backgrounds of the Fourteenth Amendment,” Everyman’s Constitution at ch. 4 (1968). After adoption of the Fourteenth Amendment by Congress, Speaker of the House Schuyler Colfax spoke in favor of Section 1: “I will tell you why I love it. It is because it is the Declaration of Independence placed immutably and forever in the Constitution.” Cong. Globe, 39th Cong., 1st Sess. 2459 (1866). 89 The guarantee of a republican form of government is a fundamental underpinning of this nation’s founding documents. See, e.g., U.S. Const. art. IV, §4 (declaring that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government”); Virginia Declaration of Rights (June 12, 1776) (declaring that “all power is vested in, and consequently derived from, the People; that magistrates are their trustees and servants, and at all times amenable to them”).
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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.90
State laws, codes and practices that favor the privileges of private business
corporations over the local self-governing rights of Pennsylvanians are no less
oppressive than was the exercise of crown-granted authority by colonial governors
and proprietors to overturn local laws in pre-revolutionary America. Having
bestowed those privileges, the State exceeds the bounds of generosity toward its
corporate creations and erects law that directly usurps the authority of the people to
govern those creations. The State and federal governments thus place themselves in
company with British colonial overlords when they apply preemptive State law to
matters of local concern, and when they enforce a body of corporate “rights” that is
so clearly illegitimate: all to protect the special privileges of a favored minority.
90 See, e.g., James Otis, The Rights of the British Colonies Asserted and Proved (1764) (declaring “let the origin of government be placed where it may – the end of it is manifestly the good of the whole. . .”); Charles de Montesquieu, The Spirit of the Laws, Bk. 2, Ch. 2 (1748) (stating that “[w]hen the body of the people is possessed of the supreme power, it is called a democracy. When the supreme power is lodged in the hands of a part of the people, it is then an aristocracy”); See also, Statement of
the Berkshire County, Massachusetts, Representatives, (Nov. 17, 1778) (declaring the proposition “that the Majority should be governed by the Minority in the first Institution of Government is not only contrary to the common apprehensions of Mankind in general, but it contradicts the common Law of Justice and benevolence”); Fitzwilliam Byrdsall, The History of the Loco-Focos, or Equal Rights
Party 169 (reprinted 1967) (quoting the New York Convention of the Equal Rights Party, which declared that “[t]he great object of a constitution is, to prevent the officers of government from assuming powers incompatible with the natural rights of man”).
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Such acts are beyond the powers of any government, yet they are currently
treated as “well-settled” law by federal and state governments.
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, 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.91
Even John Forrest Dillon, author of “Dillon’s Rule,” entertained misgivings
about the power that his Rule implicitly conferred upon corporations. He wrote:
One important subject I must briefly refer to. It is the growth of corporations or the use of aggregated capital by corporate associations. The results of an examination of the comparative extent of corporate and private litigation surprised me. In May, 1879, Chief Justice Waite wrote me that the court had at the recent term disposed of three hundred and seventy-nine causes, of which ninety-one related to the United States, one hundred and eighty three were corporation cases, and only one hundred and five were between private individuals. I then examined volume I., Johnson’s Reports, published in 1806. I found one hundred and thirty cases reported, of which only twenty related to any sort of corporations or involved corporation law. This change in the character of the litigation ought not perhaps to surprise us, since…nearly every branch of industry requiring considerable capital, prefers the safe and
91Massachusetts Const., arts. VI and VII (March 2, 1780). See also, Virginia Declaration of Rights at 4 (June 12, 1776); Pennsylvania Constitution of 1776 at fifth provision (reprinted in Pennsylvania Legislative Reference Bureau, Constitutions of
Pennsylvania/ Constitution of the United States 235 (1967)).
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facile form of corporate organization and ownership to the inconvenience and liabilities of the copartnership or even joint stock relation. How wisely and satisfactorily to govern our populous public and municipal corporations is yet an unsolved problem. The facts here brought to view, however, present statesmen and lawyers questions in political economy and practical legislation of exceeding interest and difficulty. They are not, I am persuaded, insoluble, but the future must considerately deal with them in the light of time and experience, which alone can supply the needed wisdom.
John Forrest Dillon, The Laws and Jurisprudence of England and America, 376-377 (1894).
The future that John Dillon postulated is now upon us. The Blaine Township
Ordinances are the expression in life of the rights held in fact by the people of that
community. They are protective of the physical, natural, social, governmental,
psychological, cultural, moral, and community values and attributes of the people
and environment of the Township.
The elected representatives in Blaine Township are asserting – on behalf of the
residents of that community – the proposition that the rights of the people are
superior to corporate creatures of the state. The solution to Dillon’s “unsolved
problem” requires citizens to do as the people of Blaine Township have done, and for
state and federal governments to correct the errors of the past. The State and the
Courts had, and still have, no authority to delegate away the people’s sovereignty to
private business corporations, or other entities, and to then legislate and rule that the
people may not govern the recipients of that grant.
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Finally, to state the facts in their starkest terms: when the people are denied
self-government where they live, they are denied self-government everywhere. No
one can partake in the governance of his or her own affairs while being deprived of
the right and authority to govern in the affairs of the community in which that man or
woman resides. If there is an absolute right to self-government, and there is, then
there is by definition an indefeasible right to community self-government. If
community self-government is denied, the entire right to self-government is denied.
One cannot have a “right to ride a horse” so long as no horse is ever allowed under
the rider.
The current Pennsylvania Constitution, Article I, Section 25, “Reservation of
Powers in People,” declares:
To guard against the transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate.
This, in tandem with Article I, Section 2 is unassailable in constitutionally
establishing the superior claim of the people over the state. It reads:
All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety and happiness. For the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may think proper.
As with prior movements of people before them, the people of Blaine Township are
attempting to make real the promises contained in those constitutional provisions.
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What has happened to them – as has happened to communities across the United
States over the past 150 years – is that they are reminded by courts, legislatures, and
State agencies that the corporations operating within their midst have more rights
than the people within the community. They are discovering that these creatures of
the State now carry the legal authority and raw power to nullify democratically-
enacted Ordinances that seek to protect the health, safety, and welfare of people and
nature within their community.
More than a century ago, Charles and Henry Adams sounded this alarm:
Already our great corporations are fast emancipating themselves from the State, or rather subjecting the State to their own control. [They have] combined the natural power of the individual with the factitious power of the corporation. The famous ‘L’etat, c’est moi’ of Louis XIV represents Vanderbilt’s position in regard to his railroads. Unconsciously he has introduced Caesarism into corporate life. He has, however, but pointed out the way which others will tread. The individual will hereafter be engrafted on the corporation, -- democracy running its course, and resulting in imperialism; and Vanderbilt is but the precursor of a class of men who will wield within the State a power created by the State, but too great for its control.
Charles Francis Adams, Jr. and Henry Adams, Chapters of Erie 12 (1956).
Right and justice are on the side of the people of Blaine Township. They now
need their government – including this court - to recognize their rights.
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IV. Conclusion
Accordingly, the Defendant municipality moves for the dismissal of this action
brought by the Plaintiff Corporations, because those corporations lack any
constitutional or other legal interests within the Township which would provide a
basis for their standing to sue.
Filed this 18th Day of November, 2008
Respectfully Submitted by
/s Thomas Alan Linzey Thomas Alan Linzey, Esq. Attorney I.D. #76069 Community Environmental Legal Defense Fund 675 Mower Road Chambersburg, Pennsylvania 17202 (717) 709-0457 (v) (717) 709-0263 (f) [email protected]
