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


     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 bringing 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.





    http://www.ratical.org/corporations/RRbaronsRbak.html  (hypertext)
    http://www.ratical.org/corporations/RRbaronsRbak.txt   (text only)
    http://www.ratical.org/corporations/RRbaronsRbak.pdf  (print-ready)