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FREEDOM OF ASSOCIATION, PART 3
[In this series, we are exploring "freedom of association," which is still denied to working people in the U.S. even though it is identified as a fundamental human right in the Universal Declaration of Human Rights, which the U.S. signed in 1948. Last week we saw that the framers of the Constitution in 1787 inserted the "commerce clause" and the "contracts clause" into the Constitution to consolidate the power of the property-owning class in the young republic. This week we begin to see how these features of the Constitution today consolidate the power of the corporation.--P.M.]
by Peter Kellman*
The First Amendment
In order to get the Constitution ratified by the states, the framers promised that they would support amending the Constitution to mollify the many complaints voiced against it. The passage of the First Amendment in 1791, guaranteeing freedom of speech and assembly, was heralded as a great step forward for democracy. Workers today are still waiting for the fulfillment of its promise.
The First Amendment is commonly believed to guarantee us freedom of the press, speech and assembly. As we know, freedom of the press (today's media) only applies to those who own the press. As for freedom of speech and assembly, what the Constitution actually guarantees is, "Congress shall make no law... abridging the freedom of speech, or the press; or the right of the people peaceably to assemble." Let us be clear here. The Constitution says that, "Congress shall make no law." That is, there will be no PUBLIC law denying people free speech. But what about the PRIVATE law? The Constitution does not say that employers cannot deny workers freedom of speech and assembly. The Constitution speaks to what the CONGRESS will not do; it does not speak to what PEOPLE WHO OWN PROPERTY will not do. In other words, if we want freedom of speech, assembly and association, we need to amend the First Amendment to say: "Congress shall guarantee the people's right to freedom of religion, the press, speech, assembly and association. These rights and the government's responsibility to promote the General Welfare and Human Rights shall take precedence over all other matters." So labor got the shaft but how did corporations, the agency of today's propertied class, get constitutional protection and support?
Part 3: Expanding the Constitution
Corporations are not mentioned in the Constitution. How did they get in? In 1816 a class of small property owners and skilled artisans who believed in Thomas Jefferson's vision that the United States should have a republican form of government were elected in such numbers that they held the majority in the New Hampshire legislature and also elected one of their own as governor.
Jeffersonian republicanism envisioned a society primarily composed of small farmers. An important component of republican philosophy was that it required educated people to insure a republican form of government. Republicans wanted to know that a college education would be available for their children, thus insuring a republican form of government continuing into the future.
However, colleges during that period were mainly private schools like Yale, Harvard and Dartmouth, holdovers from the colonial days. These schools were linked to the past by class and religion. They were, by design, not republican in nature. Their original purpose was to spread the word of Christianity in support of the British Empire and to educate the children of the elite.
Dartmouth College was chartered by the King of England in 1769 as an Indian Charity School "with a view to spreading the knowledge of the great Redeemer among their savage tribes."[1,pg.171] It soon evolved into a school "to promote learning among the English, and be a means to supply a great number of churches.... with a learned and orthodox ministry."[1,pg.173] The college was a cog in the colonial machinery of the British Empire.
Led by Jeffersonian republicans, a national movement developed after the revolution to turn the colonial colleges into public or publicly responsible schools. In New Hampshire the movement took the form of "An Act To Amend The Charter And Enlarge And Improve The Corporation of Dartmouth College." The text of the law, passed in 1816, begins, "Whereas knowledge and learning generally diffused through a Community are essential to the preservation of free Government, and extending the opportunities and advantages of education is highly conducive to promote this end," the legislature made PRIVATE Dartmouth College into PUBLIC Dartmouth University and ordered it to set up colleges around the state. New Hampshire Governor William Plumer promoted the change arguing that the original provisions of Dartmouth College "emanated from royalty and contained principles... hostile to the spirit and genius of free government."
The trustees of Dartmouth objected to the charter change and took the state to court. The state supreme court ruled in favor of the legislature arguing that the legislature had the right to change the charter of the college "... 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 concerns, and is worthy of the best attention of every legislature." The decision was appealed to the U.S. Supreme Court which reversed the state court AND GAVE THE CORPORATE FORM A CONSTITUTIONAL LIFE.
The U.S. Supreme Court was not interested in education. The Court was set up to be the final protector of a propertied class, and they delivered, arguing that a corporation is a private contract, not a public law. The Court decreed that although the state created the corporation when it issued the charter, it is not SOVEREIGN over that charter but is simply a PARTY to the contract.[2] All of which means that the corporation is protected from state interference by the Contracts Clause of the Constitution. And Dartmouth University, a public school, once again became a private college.
The Dartmouth decision of 1819 established the principle that corporations get constitutional protection because they are PRIVATE contracts. Then in 1886 the U.S. Supreme Court ruled -- in SANTA CLARA V. SOUTHERN PACIFIC RAILROAD -- that corporations also have the constitutional shield of "equal protection" as PERSONS under the 14th Amendment. This means that corporations are recognized constitutionally and that corporate activity has 14th Amendment "equal protection." In other words corporations gain significant constitutional protections at a time, 1886, when most flesh and blood persons -- women, Native Americans and once again most African American men -- were still DENIED the right to vote, DENIED equal protection.
If there is any question in your mind about the role the courts have played in advancing the pre-eminence of the property rights of a propertied class over the human rights of the working class, consider these four facts.
1. The 14th Amendment states, "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 any PERSON within its jurisdiction the equal protection of the laws"(emphasis added). The 14th Amendment was added to the Constitution in 1868 to protect the rights of freed slaves, but as Supreme Court Justice Hugo Black pointed out in CONNECTICUT GENERAL CO. V. JOHNSON (1938), "Of the cases in this court in which the Fourteenth Amendment was applied during the first fifty years after its adoption, less than one-half of one percent invoked it in protection of the Negro race, and more than fifty percent asked that its benefits be extended to corporations."
2. In MINOR V. HAPPERSETT (1875) the women of Ohio argued that, under the 14th Amendment, protection of due process, the U.S. Constitution established that their right to vote could not be denied by the state. The U.S. Supreme Court rejected that argument. Women received constitutional protection for the right to vote 48 years later in 1920 when the 19th Amendment to the Constitution established that the right to vote could not be denied on the basis of sex.
3. While the courts were extending "rights" to corporate persons and denying them to women, by 1920 the courts had struck down roughly 300 labor laws.[3]
4. More than 1,800 injunctions against strikes were issued between 1880 and 1931. Of the 118 labor injunctions heard in federal courts between 1901 and 1928, 70 of them were issued EX PARTE, i.e. without giving the defendants the opportunity to be heard because the defendants were not even notified of the hearing.[4] All the defendants in these cases were labor unions.
It appears that the Supreme Court has two sides to its brain. With one side it creates, protects and promotes "rights" for the institutions of the rich, and with the other side it suppresses human rights, like the right to vote and the right to associate.
Back to the Dartmouth College case. Following the logic of contracts, the U.S. Supreme Court also ruled that because the state is party to the contract the state can amend, abolish or change the contract at any time as long as there is a state law to that effect. So shortly after the Dartmouth decision, all the states passed laws, which are still in effect today, called the "reserve clause." The "reserve clause" retains the right of the state to change, abolish or alter corporate charters.[5] How would you like to be involved in a legislative struggle to revoke the charter of a corporation that permanently replaces strikers or moves factories and destroys communities?
Three People's Movements
One of the reasons the framers of the Constitution created a federal government was to protect themselves from those who also wanted to be included in "We the People." By the 1830s, movements to end slavery, advance the cause of labor and extend equal rights to women came to the fore. Slavery was ended after the Civil War with the passage of the 13th Amendment in 1865. Women's struggle to win the right to vote culminated with the passage of the 19th Amendment in 1920.
With the passage of these amendments and the continuing agitation by the people who put them in the Constitution, major changes have taken place in our society. The restrictions on voter registration relating to property, sex and race are now gone, the society has been desegregated and women and people of color WITH PROPERTY now have access to due process. And maybe the most important thing the movements for sexual and racial equality have done is to put the story of their struggles into school books and created departments at our universities dedicated to the study and promotion of the goals of the movements that created them. However, labor has yet to make it into the Constitution, because the one concession that a propertied class will fight the hardest is one that would lead to a redistribution of wealth.
LABOR ORGANIZING AND FREEDOM OF ASSOCIATION
[Because large economic inequalities create serious public health problems and give rise to social instability, and because labor unions help reduce economic inequalities, we are publishing this illuminating series on U.S. history from a labor perspective. --P.M.]
by Peter Kellman*
As we saw last week, American men of property in 1776 wanted to be free from English taxation and control. They wanted to be free to exploit the resources of America and not share the wealth with the English ruling class.
The American Revolution was promoted primarily by two groups of people. The members of these two groups had three things in common: (1) they owned property; (2) they were white, and (3) they were men. The first group consisted of speculators, large landowners, plantation owners and those that had large commercial interests. In the second group were shopkeepers and skilled artisans, the small business people of their day. These two groups made up at most 10% of the population. They organized the revolution and ran the state governments that took power when the 13 colonies declared independence in 1776. They formed the Republic of the United States.
However, most of the population was excluded from participating in the Republic. Those on the outside looking in included people who were the outright property of other people. Some of these people were African slaves and their American descendants who represented 20% of the population. Another group was indentured servants, people who were the outright property of other people for a set period of years. Indentured servants made up about 10% of the population. All women, native people and freemen without much property were denied the right to vote. In South Carolina in 1787, for example, "every free white man of the age of 21... and has a freehold of fifty acres" was eligible to register to vote.[1] But to be Governor of South Caroline the bar was raised even higher: one had to be worth 10,000 pounds.[2]
The U.S. Constitution
In 1776, the 13 colonies declared their independence from the British Crown and in 1781 the former colonies, now states, ratified a set of rules called the Articles of Confederation which determined their relationship to each other. In 1787 the state legislatures sent delegates to a meeting to discuss amending the Articles of Confederation. This meeting is now known as the Constitutional Convention of 1787. It was a closed meeting, the minutes of which were made public 53 years later.[3]
Much had happened between 1781 and 1787 that caused the class of people who fomented the revolution to be concerned about their future. Divisions within the propertied class surfaced in the state legislatures and conflict between classes manifested itself in armed insurrections against the authority of state governments.
In the state legislatures, the interests of the small business owners and artisans clashed with those of the large commercial organizations. The small businessmen wanted high state tariffs to protect their small concerns, while those with large commercial interests demanded so-called "free trade" between the states. Meanwhile, the people who were clearing the land wanted to own it, and armed insurrection against state authority broke out in many places. For example, the rebellion of Vermont's Green Mountain Boys against their New York landlords eventually led to the establishment of Vermont as the 14 th State in 1777. But it was Shays Rebellion, the armed insurrection of western Massachusetts farmers against the policies of the commercial class in Boston in 1786-1787, that weighed most heavily on the large property owners who sat down in 1787 to write the Constitution of the United States. Those who wanted free trade between the states saw the need to have a strong federal government and federal army that would always be available to put down rebellions that could not be suppressed by state militias.
The men who assembled in Philadelphia in 1787 to write the constitution were all men of property. The noted historian Charles Beard states that James Madison, primary author of the Constitution,..."in more than one speech pointed out that the conflict of interests was inescapable. He told the convention that the greatest conflict of all in the country was between those who had property and those who had none." Beard goes on to say that, "Leaders among the framers wanted, among other things, first to hold the Union together; second, to set up a government that would protect, regulate, and promote types of economic enterprise; third, to put brakes on the state legislatures which had been attacking the interests of protected classes."[4]
Here is some of what the founding fathers came up with:
The Commerce Clause - The First NAFTA
The Commerce Clause of the Constitution, Article 1 Sec. 8(3), was written "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" and was created to straighten out the conflict of interest between the small and large property owners. After the Constitution was ratified, independent state legislatures were no longer able to erect protective tariffs that "hindered" the flow of goods between the states. The big commercial interests of the day had triumphed over the small enterprises trying to "grow" local businesses.
Recently a similar event took place when the large transnational corporate interests triumphed over national business interests and labor with the passage of the North American Free Trade Agreement (NAFTA). The Commerce Clause was the first "free trade" agreement in North America, and like NAFTA, it was negotiated at a closed meeting.[5]
The Contracts Clause
The Contracts Clause of the Constitution, Article 1 Sec. 10(1), says in part that, "No State shall... pass any... Law impairing the Obligation of contracts." Legal theory holds that contracts are agreements made between equals, and therefore the state should not meddle.[6] If a state were to pass a PUBLIC law that, for example, set the maximum hours an employer could require people to work, it would be seen by the courts as IMPAIRING the right of individual citizens to negotiate contracts free from outside interference. Contracts are PRIVATE laws. And thus most labor laws passed by state legislatures and Congress prior to 1937 were ruled unconstitutional by the U.S. Supreme Court because they violated the Contracts Clause. They were PUBLIC LAWS that violated PRIVATE LAWS. The meaning is clear. The obligation of the government, as stated in the preamble to the Constitution, to promote the "general Welfare," is secondary to the PRIVATE law, the law of contracts.
Once again, the theory of contracts is based on the assumption that the contracting parties are equals. The founding fathers would have us believe that an indentured servant negotiating a contract with his master was somehow equal to the master at the negotiating table. The situation is similar to a small local union with 200 members negotiating a contract with a large employer who brings to the table enough resources to move the plant. In practice this can hardly be called a contract negotiated between equals. But this is the legal fiction, and the courts, congress, national guard, army and police uphold this distortion of common sense.
The LOCHNER V. NEW YORK case of 1905 is a classic example of how the Contracts Clause suppressed the democratic legislative activities of working class people. As a result of popular agitation, the New York State Legislature passed a law limiting the hours of work for people employed in bakeries to no more than 10 per day and 60 per week. The U.S. Supreme Court ruled, "Under such circumstances the freedom of master and employee to contract with each other in relation to their employment, and in defining the same, cannot be prohibited or interfered with, without violating the Federal Constitution." Do you know of any state or federal law today that limits the number of hours an employer can require an adult to work?
Dominance of the PRIVATE law over the PUBLIC law in our Constitution has made it very hard for working people to use the political process to better their conditions. This is true because the Constitution restricts our collective activity primarily to contractual relationships with employers, and the National Labor Relations Act limits our activity even further. So much for "We the People" forming a Government to "promote the general Welfare" that the Preamble to the Constitution promises. The question is: Who defines the "general Welfare." So far it has been the lawyers of the elite, who become Supreme Court justices, not shop stewards, teachers or home makers. When the constitutionality of a law is questioned it is five Supreme Court justices who decide for the rest of us issues like: Is a maximum 40 hour week constitutional? Do workers have free speech at work? Do employers have free speech rights in union certification elections?
The Return Servants Clause
Human rights didn't seem to be high on the agenda of the constitutional fathers, but labor did make it into the Constitution.
Article IV Sec. 2(3) says, "No 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 or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due."
Men like James Madison and George Washington wanted their human property, slaves and indentured servants, to know that if they escaped into another state the Constitution of the United States guaranteed their return. James Madison, fourth President of the United States and "master builder of the Constitution," had a great financial interest in protecting his property. He "told a British visitor shortly after the American Revolution that he could make $257 on every Negro in a year, and spend only $12 or $13 on his keep."[7] At one time James Madison enslaved 116 human beings. Based on his statement, Madison would have made a yearly profit of $28,304 on slave labor and the slaves would have realized nothing but the inhumanity of being a slave. If you were a slave or indentured servant how would you feel about this "master builder of the Constitution" writing YOUR constitution?
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