|Odoslal:||where are parts 1 2 ?|
|Dátum:||February 10, 2000 o 19:48:22|
|Subject:||Re: FREEDOM OF ASSOCIATION|
: 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
: 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
: 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
: 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
: 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. 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
: 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.
: 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. 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. 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.
: [To be continued.]
: *Peter Kellman works for the Program on Corporations, Law and
: Democracy (POCLAD). For information on POCLAD, E-mail
: email@example.com; or www.poclad.org; or phone: (508) 398-1145;
: or mail: P.O. Box 246, So. Yarmouth, MA 02664-0246.
:  Elsie W. Clews, EDUCATIONAL LEGISLATION AND ADMINISTRATION OF
: THE COLONIAL GOVERNMENTS (N.Y.: MacMillan, 1899).
:  For more details about the Dartmouth case, send a request to
: POCLAD for Vol. 2, No. 2 and Vol. 2, No. 3 of their quarterly
: publication BY WHAT AUTHORITY. E-mail firstname.lastname@example.org, or phone
: (508) 398-1145.
:  William B. Forbath, LAW AND THE SHAPING OF THE AMERICAN LABOR
: MOVEMENT (Cambridge, Mass.: Harvard University Press, 1991), pg.
:  Leon Fink, IN SEARCH OF THE WORKING CLASS: ESSAYS IN AMERICAN
: LABOR HISTORY AND POLITICAL CULTURE (Urbana, Ill.: University of
: Illinois Press, 1994), pg. 251.
:  All state and federal laws are included, embedded, in all
: private contracts. Therefore if a state passes a law reserving
: the right to unilaterally change a contract it can do so. These
: "reserve clause" rights are considered to be part of every
: corporate charter created by the state. Therefore when a
: corporation is chartered, the parties involved agree that the
: state has the right to change the corporate charter without the
: consent of the other parties.
: Descriptor terms: labor; constitutional law; human rights;
: freedom of association; constitution; first amendment; fourteenth
: amendment; nineteenth amendment; dartmough college case;
: contracts clause; corporations;
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