If you are a person of conscience, and you would not be receiving this if you
were not, the following will be of grave concern to you. This is the clearest
account I have seen of how corporations got the power they now have.

With this knowledge there is a fine opportunity for progressives within the
Democratic Party and elsewhere to make this an issue in future elections and
to work for legislation now to bring corporations back under the control of
the people.

Note that permission for further distribution of this article is granted,
provided the credit at the end of the article is included.

Tom Mathews
Sierra Club Iowa Chapter
Corporate Accountability Issue Chair
-----------------------------------------------------
     Home | Newswire | About Us | Donate | Sign-Up    Thursday, December 12,
2002
         Featured Views

        Published on Wednesday, December 11, 2002 by CommonDreams.org
            The Railroad Barons Are Back - And This Time They'll Finish the
Job
            by Thom Hartmann

            The railroad barons first tried to infiltrate the halls of
government in the early years after the Civil War.

            The efforts of these men, particularly Jay Gould, brought the
Ulysses Grant administration into such disrepute, as a result of what were
then called "the railroad bribery scandals," that Grant's own Republican
party refused to renominate him for the third term he wanted and ran
Rutherford B. Hayes instead. As the whitehouse.gov website says of Grant,
"Looking to Congress for direction, he seemed bewildered. One visitor to the
White House noted 'a puzzled pathos, as of a man with a problem before him of
which he does not understand the terms.'"

            Although their misbehaviors with the administration and Congress
were exposed, the railroad barons of the era were successful in a coup
against the Supreme Court. One of their own was the Reporter for the Supreme
Court, and they courted Justice Stephen Field with, among other things, the
possibility of support for a presidential run. In the National Archives, we
also recently found letters from the railroads offering free trips and other
benefits to the 1886 Court's Chief Justice, Morrison R. Waite.

            Waite, however, didn't give in: he refused to rule the railroad
corporations were persons in the same category as humans. Thus, the railroad
barons resorted to plan B: they got human rights for corporations inserted in
the Court Reporter's headnotes in the 1886 Santa Clara County v. Southern
Pacific Railroad case, even though the court itself (over Field's strong
objections) had chosen not to rule on the constitutionality of the railroad's
corporate claims to human rights.

            And, based on the Reporter's headnotes (and ignoring the actual
ruling), subsequent Courts have expanded those human rights for corporations.
These now include the First Amendment human right of free speech (including
corporate "speech" to influence politics - something that was a felony in
most states prior to 1886), the Fourth Amendment human right to privacy (so a
chemical company has successfully sued to prevent the EPA from performing
surprise inspections - while retaining the right to perform surprise
inspections of its own employees' bodily fluids and phone conversations), and
the 14th Amendment right to live free of discrimination (using the
free-the-slaves 14th Amendment, corporations have claimed discrimination to
block local community efforts to pass "bad boy laws" or keep out predatory
retailers).

            Interestingly, unions don't have these human rights. Neither do
churches, or smaller, unincorporated businesses. Nor do partnerships or civic
groups. Nor, even, do governments, be they local, state, or federal.

            And, from the founding of the United States, neither did
corporations. Rights were the sole province of humans.

            As the father of the Constitution, President James Madison,
wrote, "There is an evil which ought to be guarded against in the indefinite
accumulation of property from the capacity of holding it in perpetuity by...
corporations. The power of all corporations ought to be limited in this
respect. The growing wealth acquired by them never fails to be a source of
abuses." It's one of the reasons why the word "corporation" doesn't exist in
the constitution - they were to be chartered only by states, so local people
could keep a close eye on them.

            Early state laws (and, later, federal anti-trust laws) forbade
corporations from owning other corporations, particularly in the media. In
1806, President Thomas Jefferson wrote, "Our liberty depends on the freedom
of the press, and that cannot be limited without being lost." He was so
strongly opposed to corporations owning other corporations or gaining
monopolies of the media that, when the Constitution was submitted for
ratification, he and Madison proposed an 11th Amendment to the Constitution
that would "ban commercial monopolies." The Convention shot it down as
unnecessary because state laws against corporate monopolies already existed.

            But corporations grew, and began to flex their muscle.
Politicians who believed in republican democracy were alarmed by the
possibility of a new feudalism, a state run by and to the benefit of powerful
private interests.

            President Andrew Jackson, in a speech to Congress, said, "In this
point of the case the question is distinctly presented whether the people of
the United States are to govern through representatives chosen by their
unbiased suffrages [votes] or whether the money and power of a great
corporation are to be secretly exerted to influence their judgment and
control their decisions."

            And the president who followed him, Martin Van Buren, added in
his annual address to Congress: "I am more than ever convinced of the dangers
to which the free and unbiased exercise of political opinion - the only sure
foundation and safeguard of republican government - would be exposed by any
further increase of the already overgrown influence of corporate
authorities."

            Even Abraham Lincoln weighed in, writing, "We may congratulate
ourselves that this cruel war is nearing its end. It has cost a vast amount
of treasure and blood. The best blood of the flower of American youth has
been freely offered upon our country's altar that the nation might live. It
has indeed been a trying hour for the Republic; but I see in the near future
a crisis approaching that unnerves me and causes me to tremble for the safety
of my country.

            "As a result of the war," Lincoln continued, "corporations have
been enthroned and an era of corruption in high places will follow, and the
money power of the country will endeavor to prolong its reign by working upon
the prejudices of the people until all wealth is aggregated in a few hands
and the Republic is destroyed. I feel at this moment more anxiety than ever
before, even in the midst of war. God grant that my suspicions may prove
groundless." Lincoln held the largest corporations - the railroads - at bay
until his assassination.

            But then came the railroad barons, vastly enriched by the Civil
War.

            They began brining case after case before the Supreme Court,
asserting that the 14th Amendment - passed after the war to free the slaves -
should also free them.

            For example, in 1873, one of the first Supreme Court rulings on
the Fourteenth Amendment, which had passed only five years earlier, involved
not slaves but the railroads. Justice Samuel F. Miller minced no words in
chastising corporations for trying to claim the rights of human beings.

            The fourteenth amendment's "one pervading purpose," he wrote in
the majority opinion, "was the freedom of the slave race, the security and
firm establishment of that freedom, and the protection of the newly-made
freeman and citizen from the oppression of those who had formerly exercised
unlimited dominion over him."

            But the railroad barons represented the most powerful
corporations in America, and they were incredibly tenacious. They mounted
challenge after challenge before the Court, claiming the 14th Amendment
should grant them human rights under the Bill of Rights (but not grant such
rights to unions, churches, small companies, or governments). Finally, in
1886, the Court's reporter defied his own Chief Justice and improperly wrote
a headnote that moved corporations out of the privileges category and gave
them rights - an equal status with humans. (Last year we found the
correspondence between the two in the National Archives and put it on the
web. By the time the Reporter's headnotes were published, the Chief Justice
was dead.)

            On December 3, 1888, President Grover Cleveland delivered his
annual address to Congress. Apparently Cleveland had taken notice of the
Santa Clara County Supreme Court headnote, its politics, and its
consequences, for he said in his speech to the nation, delivered before a
joint session of Congress: "As we view the achievements of aggregated
capital, we discover the existence of trusts, combinations, and monopolies,
while the citizen is struggling far in the rear or is trampled to death
beneath an iron heel. Corporations, which should be the carefully restrained
creatures of the law and the servants of the people, are fast becoming the
people's masters."

            The Founders of America were clear when they wrote the Bill of
Rights that humans had rights, and when humans got together to form any sort
of group - including corporations, churches, unions, fraternal organizations,
and even governments themselves - that those forms of human association had
only privileges which were determined and granted by the very human "We, The
People."

            But, as if by magic, even though in the Santa Clara case the
Supreme Court did not rule on any constitutional issues (read the case!), the
Court's reporter rewrote the American Constitution at the behest of the
railroad barons and moved a single form of human association - corporations -
from the privileges category into the rights category. All others, to this
day, still only have privileges. But individual citizen voters must now
politically compete with corporations on an equal footing - even though a
corporation can live forever, doesn't need to breathe clean air, doesn't fear
jail, can change its citizenship in an hour, and can own others of its own
kind.

            Theodore Roosevelt looked at this situation and bluntly said, in
April of 1906, "Behind the ostensible government sits enthroned an invisible
government owing no allegiance and acknowledging no responsibility to the
people. To destroy this invisible government, to befoul the unholy alliance
between corrupt business and corrupt politics is the first task of the
statesmanship of the day."

            And so now, corporate-friendly Michael Powell's FCC is moving
toward lifting the last tattered restrictions on media ownership, allowing
absolute concentration of the voices we hear into a tiny number of corporate
hands.

            Any day now a case involving a multinational corporation claiming
the right to deceive people in its PR - its 1st Amendment right of free
speech - may be coming before the Supreme Court. (The New York Times
corporation editorialized on December 10th that corporations must have free
speech rights: the lines are being drawn.)

            As much as half the federal workforce is slated to be replaced by
corporate workers under a new Bush edict. Government (which doesn't have
constitutional human rights of privacy, and so is answerable to We, The
People) will then be able to use corporate-4th-Amendment-human-rights of
privacy to hide what those workers do and how they do it from the prying eyes
of citizens and voters. In a similar fashion, corporate-owned and thus
unaccountable-to-the-people voting machines are being installed nationwide;
in the last election these machines often produced vote results so different
from the polls that pollsters who have been successfully calling elections
for over 50 years threw up their hands and closed shop.

            This administration is set to complete what the railroad barons
pushed the Grant administration to start: to take democracy and its
institutions of governance from the hands of the human citizen/voters the
Founders fought and died for, and give it to the very types of monopolistic
corporations the Founders fought against when they led the Tea Party revolt
against the East India Company in Boston Harbor in 1773.

            And, in the ultimate irony, the new man in charge of economic
policy as Secretary of the Treasury will be a multi-millionaire Bush campaign
contributor, chairman of The Business Roundtable (an elite corps of 100 of
the nation's most powerful corporate CEOs), and, himself, a railroad baron.

            Thom Hartmann is the author of "Unequal Protection: The Rise of
Corporate Dominance and the Theft of Human Rights" -
www.unequalprotection.com and www.thomhartmann.com. Permission is granted to
reprint this article in print or web media, so long as this credit is
attached.

            ###



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