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http://www.commondreams.org/views02/1211-01.htm
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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)