We celebrated the Declaration of Independence on July 4th, but we live every day by a Constitution that the Supreme Court says favors property over people

By Marc Jampole

Whether grilling hamburgers, attending a parade, watching fireworks, playing softball or zoning out to the Dirty Hairy binge-a-thon on Sundance TV, our celebration of July 4th commemorated an obsolete document.

All the fuss about Independence Day celebrates the signing of the Declaration of Independence, easily recognized by its key passage, “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.”

The idea that animates the Declaration of Independence is equality of rights and opportunity for all men (which at the time meant white males but has since been expanded to include people of color and women). This ideal, however, was superseded by the Constitution, which as interpreted by the Supreme Court almost from its first case onward, holds as government’s primary function the protection of private property. “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” is how the Constitution begins. Sounds like a contract between large corporations, which, as it turns out it was, and is.

I have been reminded of the predominance of property over people in U.S. law reading We the Corporations: How American Corporations Won Their Civil Rights, Adam Winkler’s breezy history of Supreme Court decisions that have gradually recognized and expanded the rights of corporations. As Winkler notes, one strand of legal thinking shared by many of the rich white merchants and slave owners who wrote the Constitutions “understood the Constitution largely in terms of protecting private property and private economic relations from majority rule.” This theory predominates the thinking of the Reagan Era right wing. It is a guiding principle of the Heritage Foundation, Cato Institute, Mercatus Center and other 21st century right-wing propaganda mills. It animates the political contributions of the Koch brothers. (see Nancy MacLean’s Democracy in Chains.)

One ramification of the industrial and financial revolutions after the Civil War was that vast amounts of property (wealth) were transferred from the hands of individuals to corporate control. Even though individuals controlled corporations and other individuals owned them, a corporation was something different from the sum of those individuals. In essence, a corporation comprises its tangible and intangible assets and its debts (which are negative forms of property) and thus is nothing more or less than a piece of property, no less than land, furniture, equipment or the right to use an image.

Early on, the managers and owners of corporations wanted to assert corporate rights, while governments and reformers wanted to restrict them. It was up to the Supreme Court to interpret the Constitution and decide what rights corporations—compositions of property and property rights—had. According to Winkler, the “corporate rights” movement developed alongside the Civil Rights movement, and was more successful earlier on.

From the turn of the 20th century to just before World War II in what is known as the “Lochner Era,” named after a 1905 case, the Supreme Court distinguished between property rights and liberty rights. The court gave property rights to corporations, but not liberty rights, such as the right to free speech. In fact, it was in this era that the first laws were passed limiting the ability of corporations to give money to support candidates. But the Court in the Lochner Era also invalidated state and federal legislation that constrained corporations, such as minimum wage laws, federal child labor laws, and regulations of the banking, insurance and transportation industries.

After World War II, the Supreme Court under Chief Justice Earl Warren focused much more on protecting the rights of individuals, but to the degree that these included property rights, Court decisions also helped corporations.

Since Nixon replaced four Supreme Court justices with pro-business conservatives in the late 1960s and early 1970s, the Court has gradually recognized that corporations—again, collections of property owned collectively by individuals—have liberty rights, too, in decisions such as First National Bank of Boston v. Bellotti, in which the Court ruled that corporations had a First Amendment right to speak and spend freely on ballot referenda. The coup-de-grace for corporate liberty rights was, of course, Citizens United, which has enabled corporations to give unlimited amounts of “dark money” to support candidates.

By giving corporations that same rights as individuals, the Supreme Court has enthroned property as more important than “Life, Liberty and the Pursuit of Happiness.” It has also created a number of asymmetries which give large corporations overwhelming advantages over smaller businesses and individuals. While corporations can’t cast votes, they have greater influence over elections than individuals because they have more money to spend. Once de facto limits are removed from campaign contributions, as Citizens United did, those with more money have more votes. Likewise in employment: the corporate entity has the power not to hire someone who doesn’t accept an arbitration agreement.

Most Americans like to think that the great arc of history—and in particular American history—bends towards freedom and justice for all, as Martin Luther King once said. The freeing of the slaves, the gaining of the right to vote, minimum wage, child labor and overtime laws, the end of legal segregation, gay marriage—these are all milestones in the American pursuit of liberty and equal opportunity. But Winkler’s conclusion in We the Corporations is that over the course of time, corporations have won more constitutional rights than have individuals. And every win for corporations is a win for property over people. Remember, we live by the Constitution, not the Declaration. Our right to pursue happiness—enshrined by the Declaration of Independence—exists, but it’s not as strong or as meaningful as the rights of a corporation to pursue profit for the rich folk who own it.

Despite the many recent setbacks & the fear that Roe V. Wade could be overturned, progressives have some cause for optimism

By Marc Jampole

Just about everyone with whom I’ve spoken these past few days is stunned and depressed because of the accelerating accumulation of Trump Administration actions that are against the best interests of most Americans, morally offensive, signs of a growing autocratic state or some combination of the three.

At the risk of driving half my readership to drink, dope or anti-depressants, let me review the terrible stuff to happen just this week:

• We began to recognize the full extent of the incompetence and cruelty with which the administration is prosecuting its zero tolerance policy against refugee families.
• The Supreme Court issued several horrible 5-4 decisions, including Janus v. AFSCME, which could gut public sector unions, and Trump v. Hawaii, which upheld the right of Donald Trump to impose a travel band even if his public comments demonstrate the ban is meant to discriminate against one religious group.
• Trump announced a July summit with Vladimir Putin, where he is sure to give away whatever of the store is left after his capitulations to North Korea.
• The trade war with allies intensified and we began to see analyses that show that the net effect of Trump’s tariffs even before the imminent trade war will be to create a few jobs in shrinking industries like steel manufacturing while destroying jobs in growth industries such as renewable resources.
• Another mass murder—this one of journalists—with no federal gun control law anywhere close to being passed.
• The kicker of course was the announcement that Anthony Kennedy was retiring from the Supreme Court allowing Trump to replace a right-wing, pro-business ideologue who was okay with gay marriage and abortion with a right-wing, pro-business ideologue who is against gay marriage and abortion. Most liberals expect and fear that Roe V. Wadewill soon be overturned and from 18-26 states will ban abortion outright.

Every week it seems we get hit by more and more of these abominations. No wonder most of us on the left are feeling a little punch-drunk right now, as if we can’t take any more of these constant hits to our body politic. Over the past two weeks I have heard more pessimistic sentiments from liberal acquaintances than over the previous two years. Friends and acquaintances are now sure that Trump will avoid impeachment and win again in 2020, with the help of voter suppression and Donald’s best bud in Moscow. Others rightfully despair that we will likely get the most politically activist right-wing Supreme Court in American history. Others seem to be suffering contact post-traumatic stress disease (PTSD), as they see the bleak images of children crying in cages and learn more about the biggest federal government botch job since the Bush II’s Iraq and Katrina debacles. We feel powerless to help ease the pain of these children, and we know the horrible truth that the psychological part of it will persist for decades after the proximate cause is removed. I can still conjure the images and emotions of several childhood traumas I suffered, but even worse are my imagined sufferings that my son never went through, but could have. I know I’m among tens of millions of parents who have transferred empathy for their own children to the innocent children Trump’s ICE took away from their parents. It’s a miserable feeling of helplessness.

(Aside: A lack of competence seems to characterize all ideological regimes, in the United States as elsewhere. Just think of the similarities between the Trump regime and the Soviet Union under the communists.  People get positions because of their ideological purity or emotional proximity to the great leader, not competence. Competent people who disagree with the party line lose their jobs. Decisions are made based on the a priori beliefs of the great leader or the ruling elite, even if those decisions ignore scientific evidence or empirical experience. The results are half-baked policies which are then implemented incompetently.)

The current emotional depression (as opposed to the economic one likely to come in a few years) deepens into despair for those who consider that the rationale for most of the policies that Trump has implemented are pure lies: Environmental protections do not hurt the economy or diminish jobs. We do not have a problem with too many immigrants, and in fact could use some more to fill the many open positions our economy now has. Immigrants commit less crime than native-born Americans and increase the jobs and income of non-immigrants. Our allies were not taking advantage of us in treaties. Iran was not ignoring the terms of the nuclear agreement. Cutting taxes for the wealthy and corporations does not lead to greater investment in new jobs. Socialized healthcare keeps populations healthier and costs less per person. Then there are the filthy lies, like the one that an overwhelming majority of government aid recipient are minorities or that minorities receive preferential treatment by schools, employees and government. Not one part of the Trumpite program starts with a factual basis.

Like patients of talk therapy, let’s pick at the open wound and dig deeper into the dismal morass of the current political situation by remembering that Trump is not a solitary figure who upset everyone’s apple cart, but only the extreme version of Reagan Republicanism. Other than tariffs, consider how similar Trump’s actions have been in office to what the rest of the field save Kasich was advocating. Just about all Republicans since Reagan have retreated to a large degree from the fact-based universe when it did not jibe with the ideology they wanted to impose on reality. Just about all have been more interested in power than fairness in government. All have supported privatization of basic services as a way to reward their contributors and business allies. All have worked almost exclusively for the interests of the wealthy and extremely wealthy, while stringing along the religious right by supporting anti-woman and anti-LGBTQ positions. All have worked to restrict voting rights. Just about all have played the race card with frequency, usually in a subtle code language.

If the Republican Party has seemed quick to embrace Trump despite his ignorance, autocratic predilections, uncivility and overt racism and sexism, it is merely because it has been moving in those directions since Reagan fanaticized about welfare queens driving Cadillacs and Americans workers vampirized of every incentive to work by cheap, free healthcare. What that means is that Republicans are happy to see us slip into fascism, as long as a white majority elects the autocrats running and ruining the country for the benefit of the ultra-wealthy.

A pretty grim situation, and yet I have hope.

My hope comes from the fact that even with restrictive voting laws, if all the constituencies of the Democratic Party come out to vote, the Democrats can still control the House and Senate and win the Electoral College. It will take a massive effort to register voters and then get them out to the polls, but it can be done.

My hope comes from knowing that groups that tend to vote Democratic are growing—college educated white women, millennials, minorities, whereas groups that have now tend to vote Republican are shrinking—whites without education, evangelicals.

I’m hopeful because millennials and minorities are pushing the Democrats left, so that when they do take power again, the Dems will more likely be emboldened to make real change—Medicare for all, a trillion-dollar infrastructure program, steep tax increases on the wealthy, legislating all the environmental regulations the Trump administration has been rolling back, responding to all the crap that’s going to come out of the Roberts’ Court with overriding legislation.

We are in the final stages of a coup d’état by a theocratic autocracy, but all is not lost, as long as we have the right to vote. But for once, we have to exercise it and do so with some common sense. Whoever the candidate for whatever the office, we have to vote for the Democrat, and not the independent, the “good Republican,” the Green Party candidate or none of the above. At the same time, we have to vote and support the most left-leaning candidate in every Democratic primary.

So in the gloom of the summer of our discontent, fellow lefties, let’s dream of November and think not just about voting but helping others to register and get to the polls.