Discussion Group Report

"Do we consider ourselves capable of and entitled to self-governance? If so, are we willing to struggle to achieve it?" asked Mary Zepernick in a 2004 address to the Harvard Divinity School's Theological Opportunities Program on October 21, 2004. "How we answer these questions determines the fate of the commons--including ourselves and all we hold dear."

A group called Friends of the Commons defines the commons as "the vast realms of nature and society that we inherit together and must pass on, undiminished, to our children." The commons has come into use today as a helpful way to think about various aspects of nature and society that are increasingly under assault by giant corporations. Jane Anne Morris points out that the commons is everything except what we the people choose not to include. It derives from decisions made by us, collectively--which presumes democratic self-governance.

It wasn't a collective decision in the Enclosures of the 15th, 16th, and 17th centuries when the English commons--lands worked "in common" by peasants for centuries--were fenced so that the landed gentry could pursue single crops for profit , like grain or sheep or wool. Some historians have described them as enterprising and ruthless capitalists. A protest was, "The law locks up the man or woman who steals the goose from the common. But the greater villain the law lets loose, who steals the common from the goose." The Enclosures, which is an old-fashioned word for privatization, helped spark the Cromwellian revolution that deposed and beheaded King Charles I in 1642.

"Today," says Zepernick, "privatization refers to turning over to corporations--now considered the 'private sector'--aspects of nature and society previously under the jurisdiction of government--the "public sector," with its authority ostensibly rooted in us, the public. The vast realms of nature and society are being increasingly privatized for the primary benefit of the few. However, it's not about good or bad people, good or bad corporations. It's about who governs."

The modern corporation is one of the world's foremost concentrations of wealth, power and property. Ambrose Bierce describes it in the Devil's Dictionary as "an ingenious device for obtaining individual profit without individual responsibility."

During the colonial period, the royal chartered corporations--trading companies like the East India and Hudson Bay companies--were extensions of the English monarch, institutions not only of commerce but of governance. It was through these corporations and the chartered crown colonies, like Massachusetts Bay and Virginia, that the colonists most felt the weight of English control. So it was logical that, once independent from England, the founders put corporations on a short leash through state-issued charters that defined their purpose, length of capitalization and operation, made shareholders liable for harms done, and prohibited corporations from owning other corporations.

The Pennsylvania legislature declared in 1834: "The corporation is just what the incorporating act makes it. It is the creature of the law and may be molded to any shape and for any purpose that the legislature may deem most conducive for the general good." For the first several generations of U.S. history, property organized in the corporate form was subordinate to the people's representatives--with the few and small corporations that existed considered public, not private institutions. Charters had teeth and were invoked when violated and the corporation dissolved.

What happened? The word corporation wasn't mentioned in the Constitution. The Supreme Court first "found" the corporation in the Constitution in the Dartmouth college case of 1819. The court, an unelected, unaccountable and elite body, declared the corporation a private contract under the contracts clause of the Constitution--the beginning of privatizing this public institution which had been meant to be conducive for the general good. The Industrial Revolution and the Civil War brought enormous growth in the number, size and wealth of corporations. Corporate managers, lawyers and lobbyists, seeing rights conferred on individuals, began inserting into court cases arguments for inclusion of corporations as persons entitled to 14th Amendment due process and equal protection of the laws. They succeeded in 1886, when the Supreme Court in Santa Clara v. Southern Pacific Railroad "found" the corporation in the 14th Amendment--what is now known as corporate legal personhood. Subsequently the Court has "found" the corporation in the Bill of Rights protections of the 1st, 4th and 5th Amendments. Corporate free speech is solidly in the way of meaningful changes in the electoral and legislative processes, since court decisions in the 1970s equated political spending with speech and voided a Massachusetts law prohibiting corporate interference, including funding, in citizen referenda. Also, the Supreme Court has "found" the corporation in the commerce clause of the Constitution, voiding over 1000 local and state protective laws as being in restraint of trade, and repeatedly ruling against labor organizing and strikes. The U.S. domestic free trade zone has provided the model for unelected and unaccountable and elite bodies like the WTO and NAFTA, which make and enforce global trade policies. Thus the corporation has once again become, as in colonial times, not only a commercial or economic institution but a governing institution. The few who wield the constitutional rights of the giant corporation, along with their complicit public officials, decide policies on investment, production, technology and work; foreign and military policy; policies on energy, agriculture, pharmaceuticals, and the environment, including natural resources like water, minerals and forests; policies on social issues like welfare, health care, transportation, education and more.

What can we do about this situation? The Abolitionists didn't demand a Slave Protection Agency. They drove freedom and rights into the Constitution. Women suffragists didn't ask men to treat them a little better. Civil rights activists weren't content to make Jim Crow and other laws less harsh. These were movements that changed the culture in order to support a legal strategy to change the law. For the past five years rural Pennsylvania townships have claimed the authority to protect their commons by banning hog farms and the spreading of toxic fluid sludge on farmland and have actually revoked corporate constitutional rights to override local decisions protecting health, safety, family farms and the environment. Communities and counties in California have prohibited further incursions from chain restaurants, and the planting of genetically engineered crops, and are exploring ordinances to revoke corporate constitutional rights in their local jurisdiction.

"Do we really believe we are capable of governing ourselves?" asks Zepernick. "Cornel West said that our minds are so colonized that we can scarcely imagine what a real democracy would look like. Are we by nature doomed to hierarchical power relationships, or can we throw off the colonization of millennial-old patriarchy (not only a gendered word)?"