Reclaim Democracy!

Biden Backs Letting Soldiers Arrest Civilians

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By Joyce Howard Price
July 22, 2002
The Washington Times

Sen. Joseph R. Biden Jr., Delaware Democrat, yesterday strongly endorsed giving soldiers the power to arrest American civilians.

Interviewed yesterday on “Fox News Sunday,” Mr. Biden, a member of the Judiciary Committee, said the Posse Comitatus Act of 1878, which prevents the military from exercising police powers in this country, should be re-examined and “has to be amended.”

Such a change will happen soon, he said.

However, Tom Ridge, director of the Office of Homeland Security, said in several appearances on political talk shows yesterday that the Biden proposal should be considered but that he thinks it’s “very unlikely” such a change will be made.

The Biden proposal and the Ridge “knockdown” – not necessarily a “knockout” – may have been coordinated and calculated to measure public reaction. Mr. Ridge grew more emphatic later in the day in his view that military authorities should not have such powers of arrest over civilians.

Mr. Biden said that “we’re not talking about general police power, changing the idea that you would have your local National Guard with arrest power like your local policeman.”

But “it’s not very realistic” that, under the current law, soldiers with knowledge of weapons of mass destruction, who might be checking out the discovery of a terrorist weapon in the United States, would “not be able to exercise the same power a police officer would in dealing with that situation.”

“Right now, when you call in the military, the military would not be able to shoot to kill, if they were approaching the weapon,” nor could they arrest any suspects. Mr. Biden is chairman of the Senate Foreign Relations Committee.

Air Force Gen. Ralph E. Eberhardt, President Bush’s choice to lead the military’s new Northern Command, told the New York Times that he favors changes in existing law to give increased domestic powers to the military to protect the nation against terrorist attacks.

“We should always be reviewing things like Posse Comitatus and other laws if we think it ties our hands in protecting the American people,” said Gen. Eberhardt, whose command’s primary goal is domestic security, in a dispatch published yesterday in the newspaper.

The New York Times reported that the general’s opinion is shared by other senior military officials and represents a “shift in thinking” at the Pentagon, which historically has resisted involvement in domestic law enforcement.

The White House has instructed lawyers at the departments of Defense and Justice to analyze federal laws on the books that restrict the military’s role in law enforcement on U.S. shores, the paper reported.

Congress assigned to federal troops a large role in law enforcement in the 11 Confederate states after the Civil War, tasks such as guarding election polling places, arresting members of the Ku Klux Klan, and halting the production of illegal moonshine and the fomenting of labor strife. The Posse Comitatus Act was enacted in 1878 to eliminate military enforcement of the civil law, effectively ending Reconstruction.

Mr. Biden recalled that in 1995 he and Sen. Sam Nunn, Georgia Democrat, after the bombing of the Alfred P. Murrah Federal Building in Oklahoma City, introduced legislation that would have “moderately altered” the Posse Comitatus Act, enabling the military to intervene in incidents involving weapons of mass destruction.

Mr. Biden said some lawmakers are likely to be more receptive to repealing the 1878 act now than they were before September 11.

On Fox, Mr. Ridge called Gen. Eberhardt’s remarks about the need for such a review “very appropriate.”

“We need to be talking about military assets in anticipation of a crisis event. And, clearly, if you’re talking abut using the military, then you should have a discussion about Posse Comitatus. It’s not out of the question [that there could someday be a situation] when, in support of civilian authorities, we would give the National Guard or troops arrest ability” in a crisis situation where there may be “severe consequences to a community or region.”

However, he said such a scenario is “very unlikely.”

In a separate interview on CNN’s “Late Edition With Wolf Blitzer,” Mr. Ridge was even more emphatic that the discussion is an academic one. “There’s been absolutely no discussion with regard to giving military authorities the ability to arrest in their support of civilian authorities.” Asked whether he believes the military should have the power to arrest U.S. citizens, he replied: “No.”

Mr. Ridge said he could imagine, hypothetically, the secretaries of defense and homeland security broaching the possibility of changing the 1878 act at some future meeting.

“That does not mean that it will ever be used or the discussion will conclude that it even should be used,” he said. “I think that generally goes against our instincts as a country to empower the military with the ability to arrest.”

On “Late Edition,” Sen. Fred Thompson of Tennessee, ranking Republican on the Governmental Affairs Committee, said he believes military troops could be useful for tasks such as “surveillance along the borders thousands of miles that are very difficult for law enforcement to deal with.”

“It would be against our traditional Posse Comitatus principles. But it might be an idea whose time has come.”

But Sen. Carl Levin, Michigan Democrat and chairman of the Armed Services Committee, said the Posse Comitatus Act is a “solid law” that “has served us well.” He said: “We should not assume that we’re going to have to change it. On the other hand, I don’t fear looking at it to see whether or not our military can be more helpful than they’ve been up to now” in providing training, equipment and other assistance in disaster situations. But the military should not be arresting people.

© 2002 The Washington Times

ACLU & Nike vs. Reason

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May 15, 2002
by Jeff Milchen

With political dissent under attack as “unpatriotic” and immigrants’ rights flouted by the federal government, the American Civil Liberties Union has a vital role to fulfill in defending personal freedoms. So why is the ACLU devoting resources to argue that transnational corporations like Nike should enjoy Bill of Rights protections?

For years, human rights advocates have investigated and worked to expose horrid working conditions in the Nike Corporation’s overseas “sweatshops.” Naturally, Nike fought the accusations with a public relations campaign denying the claims and blamed subcontractors while disavowing responsibility for contractors’ conditions.

Marc Kasky sued Nike for fraud under California consumer protection laws for broadcasting misinformation, but his suit initially was thrown out in state courts, which said Nike’s PR was protected “free speech.”

On appeal of Kasky v Nike Inc. to the California Supreme Court, Nike and the ACLU of Northern California argued that because the company’s PR was partially political debate and not purely commercial, it had the “right” to tell its story with full 1st Amendment protection and bore no legal duty to be truthful.

Thankfully, they lost. On May 2, the Court ruled 4-3 that communication need not be an advertisement to be “commercial speech” with less than paramount protection. The court reinstated Kasky’s suit without ruling on the merits of the case, which now can be argued in trial court (pending possible appeal by Nike Inc. to the U.S. Supreme Court).

The ruling clearly was a victory for the public interest and groups taking on powerful corporations, but someday Nike’s argument will be dismissed with a one-sentence explanation: “Corporations are not people and the Bill of Rights does not apply.”

The notion that corporations — entities unmentioned in our Constitution — should enjoy protections created for living human beings is a concept deserving burial deep in the same dark closet as the legal precedents of slavery and “separate but equal.”

But unlike our history regarding slavery, our founders got it right. They despised corporations as they knew them–as tools to drain wealth from the colonists and enrich the English monarchy. When states began chartering (granting permission to exist) some corporations in the late 1700s, all agreed that corporations were tools to serve the public interest. We chartered corporations because they were a useful tool to gather investment and disperse financial liability in order to provide public goods, such as construction of roads, bridges or canals.

Though corporations subsequently were allowed to enter other business realms, for many years state officials ensured they were fully subordinate. State legislatures revoked charters of corporations that exceeded their permitted roles and tightly controlled other aspects of corporate activity. States also forbade corporations to spend money to influence elections, legislation or public opinion.

So where did this concept of “corporate free speech” come from?

Later generations, lacking firsthand experience of corporate exploitation, were less vigilant about keeping them in check. States allowed the number, size and scope of corporations to grow rapidly in the 1800s. As corporations grew in wealth, their economic power bestowed political power to their owners.

Following the Civil War, corporations rapidly completed the transformation from tools to serve the public to tools for consolidating wealth and power for their owners. The culmination of this power grab may have come in 1886, when a U.S. Supreme Court reporter created “corporate personhood.”

Though the court did not rulewhether or not corporations enjoyed protection under the 14th Amendment (and hence the Bill of Rights), the case of Santa Clara County v. Southern Pacific Railroad subsequently was cited as precedent to apply the Bill of Rights to corporations–years before most human beings enjoyed full Constitutional protection!

So how does this relate to civil rights and Nike?

Ultimately, the undeserved privilege and power of corporations comes directly at the expense of our power as individual citizens. If corporations are calling the shots in our Congress and courts, we are not.

Ironically, one dissenting justice in Nike wrote that the decision failed to “account for the realities of the modern world–a world in which personal, political and commercial arenas no longer have sharply defined boundaries.” You can bet that corporations will continue to try blurring those boundaries to usurp personal freedoms.

So long as we accept such absurdities as “corporate free speech,” we preclude the possibility of democracy, for we can never speak as loudly with our own voices as corporations can with the unlimited amplification of money. ACLU supporters should demand that it stop promoting corporate “rights” and recognize that greater corporate privilege occupies the space that citizens’ rights otherwise would.

The Nike case presents a superb provocation to explore our forgotten history and reclaim some of our tools for keeping capital and corporations subordinate to democracy.

Jeff Milchen is the director of ReclaimDemocracy.org

Our Hidden History of Corporations in the U.S.

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When American colonists declared independence from England in 1776, they also freed themselves from control by English corporations that extracted their wealth and dominated trade. After fighting a revolution to end this exploitation, our country’s founders retained a healthy fear of corporate power and wisely limited corporations exclusively to a business role. Corporations were forbidden from attempting to influence elections, public policy, and other realms of civic society.

Initially, the privilege of incorporation was granted selectively to enable activities that benefited the public, such as construction of roads or canals. Enabling shareholders to profit was seen as a means to that end. The states also imposed conditions (some of which remain on the books, though unused) like these*:

  • Corporate charters (licenses to exist) were granted for a limited time and could be revoked promptly for violating laws.
  • Corporations could engage only in activities necessary to fulfill their chartered purpose.
  • Corporations could not own stock in other corporations nor own any property that was not essential to fulfilling their chartered purpose.
  • Corporations were often terminated if they exceeded their authority or caused public harm.
  • Owners and managers were responsible for criminal acts committed on the job.
  • Corporations could not make any political or charitable contributions nor spend money to influence law-making.

For 100 years after the American Revolution, legislators maintained tight control of the corporate chartering process. Because of widespread public opposition, early legislators granted very few corporate charters, and only after debate. Citizens governed corporations by detailing operating conditions not just in charters but also in state constitutions and state laws. Incorporated businesses were prohibited from taking any action that legislators did not specifically allow.

States also limited corporate charters to a set number of years. Unless a legislature renewed an expiring charter, the corporation was dissolved and its assets were divided among shareholders. Citizen authority clauses limited capitalization, debts, land holdings, and sometimes, even profits. They required a company’s accounting books to be turned over to a legislature upon request. The power of large shareholders was limited by scaled voting, so that large and small investors had equal voting rights. Interlocking directorates were outlawed. Shareholders had the right to remove directors at will.

In Europe, charters protected directors and stockholders from liability for debts and harms caused by their corporations. American legislators explicitly rejected this corporate shield. The penalty for abuse or misuse of the charter was not a plea bargain and a fine, but dissolution of the corporation.

In 1819 the U.S. Supreme Court tried to strip states of this sovereign right by overruling a lower court’s decision that allowed New Hampshire to revoke a charter granted to Dartmouth College by King George III. The Court claimed that since the charter contained no revocation clause, it could not be withdrawn. The Supreme Court’s attack on state sovereignty outraged citizens. Laws were written or re-written and new state constitutional amendments passed to circumvent the (Dartmouth College v Woodward) ruling. Over several decades starting in 1844, nineteen states amended their constitutions to make corporate charters subject to alteration or revocation by their legislatures. As late as 1855, it seemed that the Supreme Court had gotten the peoples’ message when in Dodge v. Woolsey it reaffirmed states’ powers over “artificial bodies.”

But the men running corporations pressed on. Contests over charter were battles to control labor, resources, community rights, and political sovereignty. More and more frequently, corporations were abusing their charters to become conglomerates and trusts. They converted the nation’s resources and treasures into private fortunes, creating factory systems and company towns. Political power began flowing to absentee owners, rather than community-rooted enterprises.

The industrial age forced a nation of farmers to become wage earners, and they became fearful of unemployment–a new fear that corporations quickly learned to exploit. Company towns arose. and blacklists of labor organizers and workers who spoke up for their rights became common. When workers began to organize, industrialists and bankers hired private armies to keep them in line — sometimes by killing key leaders. They bought newspapers to paint businessmen as heroes and shape public opinion. Corporations bought state legislators, then announced legislators were corrupt and said scrutinizing every corporate operation wasted public resources

Government spending during the Civil War brought these corporations fantastic wealth. Corporate executives paid “borers” to infest Congress and state capitals, bribing elected and appointed officials alike. They pried loose an avalanche of government financial largesse. During this time, legislators were persuaded to give corporations limited liability, decreased citizen authority over them, and extended durations of charters.

Attempts were made to keep strong charter laws in place, but with the courts applying legal doctrines that made protection of corporations and corporate property the center of constitutional law, citizen sovereignty was undermined. As corporations grew stronger, government and the courts became easier prey. They freely reinterpreted the U.S. Constitution and transformed common law doctrines.

One of the most severe blows to citizen authority arose out of the 1886 Supreme Court case of Santa Clara County v. Southern Pacific Railroad. Though the court did not make a ruling on the question of “corporate personhood,” thanks to misleading notes of a clerk, the decision subsequently was used as precedent to hold that a corporation was a “natural person.” (This story was detailed in “The Theft of Human Rights,” a chapter in Thom Hartmann’s Unequal Protection.)

From that point on, the 14th Amendment, enacted to protect rights of freed slaves, was used routinely to grant corporations constitutional “personhood.” Justices have since struck down hundreds of local, state and federal laws enacted to protect people from corporate harm based on this illegitimate premise. Armed with these “rights,” corporations increased control over resources, jobs, commerce, politicians, judges, and the law.

A United States Congressional committee concluded in 1941, “The principal instrument of the concentration of economic power and wealth has been the corporate charter with unlimited power….”

Many U.S.-based corporations are now transnational, but the corrupted charter remains the legal basis for their existence. At Reclaim Democracy!, we believe citizens can reassert the convictions of those who struggled successfully to free us from corporate rule in the past. These changes must occur at the most fundamental level — the U.S. Constitution.

We are indebted to our friends at the Program on Corporations, Law and Democracy for their research, some of which was adapted with permission for this article. Sources include:

Visit our Corporate Personhood page for a huge library of articles exploring this topic more deeply.