Turning Defense into Offense: Challenging Corporations and Creating Self-Governance
by Tom Linzey
It’s rare that someone comes along and tells us emphatically that we activists no longer have to keep banging our heads. Linzey has a solution. You may not like what you hear because we may have to give up hope in order to get there. But I and many others think he’s right on target and ought to be listened to.
Excerpted from a speech at the recent October, 2006 Bioneers Conference in San Rafael, CA.
After ceding our authority to decide whether the Monsanto or Weyerhaeuser Corporation will tinker with genetic codes of life or buzz-saw their way through old growth forest ecosystems, and exchanging it for a regulatory process that assumes that they will, but merely regulates how fast, the wonder is not that things have gotten worse, but that things aren’t worse than they are.
So why has our activism failed so miserably to not only build the world that we want, but even to draw a line in the sand to keep things from getting worse?
Perhaps it is because our activism is built, tooth and nail, on one critical and most times, completely unquestioned assumption.
That unquestioned assumption, a box within which we’ve constructed our activism over the past four decades, is the assumption that we actually live in a democracy.
That is, we assume that we live in a country where it actually matters what majorities of people think and want; where it actually matters what a majority of people within a given community think and want.
It is that assumption that hardwires our organizing the assumption that the fundamental governing structure under which we live, actually recognizes, and is dictated by, the will of majorities. It is that assumption that determines that our activism will be sufficient if we merely perfect our roles as regulators, consumers, and investors.
That if we just get enough people to write letters to congress, that if we just get enough people to attend a hearing or protest, that if we just get enough people to buy the right stuff, or invest in the right stuff, that we’ll force those who actually run this country to reverse course.
In other words, in assuming that we live in a democracy, we mistakenly tailor our strategies and our tactics towards mobilizing people in the same tired old ways that have now failed for close to half a century.
Perhaps, just perhaps, we’re in this mess today not only because we don’t live in a democracy, but we find ourselves in this mess because we’ve never had a democracy in this country. Indeed, perhaps the corporate cultural IV in our arms has been working so well that it’s hard for us to even imagine what self-government would look like.
As a result, we tangle ourselves further each year by continuing to define the nature of the problems we face as the projects themselves that we seek to oppose: thus, we define the problem as aerial herbicide spraying in Alaska; or a toxic waste incinerator being built in Ohio; or sewage sludge being dumped in Berks County, Pennsylvania.
In defining the problem as the project itself, we then gather people who care or we work to convince people that they should care – in the belief that if we just mobilize enough people that the decision-makers will take note and the project will be stopped. In short, we assume that it matters that community majorities don’t want the spraying, incinerators, or the sludge.
Community majorities are overridden on a daily basis. Regulatory agencies legalize projects and actions that communities don’t want. Zoning and land use ordinances are routinely overridden by judicial doctrines like the Fair Share Doctrine in which courts can throw out zoning and land use ordinances if those laws don’t allow for the communities fair share of development as compared to communities next door; local laws are routinely nullified that conflict with state and federal laws.
And when communities really try to practice democracy, and refuse to swallow what they’ve been given, corporate managers write new preemptive laws and use the state legislatures to nullify community lawmaking. When state legislatures get out of hand, they use the federal government to preempt the state legislature. When national governments get out of hand, they use international trade agreements to preempt them.
What wasn’t so clear to me, at least, was how that structure of law became like a dead hand from the past, ending up insulating agribusiness corporations and the small number of people running them – against community majorities in rural Pennsylvania.
To my surprise, it turned out that the only thing jettisoned by the American Revolution was the king. The English structure of law, on the other hand, was heartily embraced by those drafting the U.S. Constitution many of whom were lawyers, of course, in the finest English traditions who revered English Law.
And so, that body of law, forged in the fires of expanding an empire while protecting minority rule at home, was thus hardwired into the fundamental governing document of this country, the U.S. Constitution.
Now that’s an astonishing proposition to some, but not to our folks in Pennsylvania who are being hit upside the head with that structure of law on a daily basis. Something in that proposition has made deep sense to them, especially when they listened to what some of the founding fathers had to say about it.
Listen to James Madison, generally regarded as the architect of the constitution who bluntly stated:.
“Our government ought to secure the permanent interests of the country against innovation. . . It ought to be so constituted as to protect the minority of the opulent against the majority”.
“The states ought to be placed under the control of the general government at least as much so as they were formerly under the king and British parliament”.
The courts tell us that garbage is interstate commerce, that corporate pork production is interstate commerce, that cell phone towers are interstate commerce, and that production and distribution of toxics are interstate commerce. .
Under the commerce clause, exercising local, democratic control over those industries can not only get you sued, but forced to pay future lost profits to waste, agribusiness, telecommunications, and other corporations.
In addition to the Commerce Clause, the constitution now shields corporations under the 1st Amendments free speech protections (thus enabling corporate advertising to frame issues before anyone even decides to run for office); shields corporations from surprise regulatory inspections as unreasonable searches and seizures under the 4th Amendment; requires governments to pay corporations for the impact of health and safety laws under the 5th Amendment; and now cloaks corporations with the fundamental rights and protections of Equal Protection and due process under the 14th Amendment.
It’s no wonder that some anti-federalists, challenging the ratification of the constitution itself in the late 1700s, declared that the plan of governance it set forth was nothing less than a plan for a global economic empire that would commence in a moderate aristocracy, eventually swallowing up every other government on the continent.
So what does all of that have to do with the mess that were in today? Well, as it turns out, everything: whenever we try to fix the mess, we run not only into our courts, the legislatures, and our culture being wielded by a corporate minority against us, we also run smack into the ultimate trump card; the Constitution itself.
In 2004, I stood on this stage and told a Bioneers crowd how a hundred small, rural, conservative Pennsylvania townships, targeted for hog factory farms in their communities, had begun to take aim directly at the four corporations that control over sixty-five percent of pork production in the United States.
I told the story of how those communities reframed the problem away from the air and water pollution and property devaluation caused by factory farms indeed, away from factory farms themselves – reframing the problem as the corporatization of agriculture, and the elevation of the rights of those corporations over the rights of those communities.
I told the story of how some of those communities followed the lead of nine mid-western states and began passing laws banning agribusiness corporations from farming in essence, prohibiting those corporations and the few who run them from defining what farming would look like within those communities. In a very real way, they acted to replace corporate minority decision-making with community self-government.
I told the story of other communities who watched as two children died in Pennsylvania after being exposed to land applied sewage sludge, and who began passing local laws that prohibited sludge corporations from operating in their communities. .
All together, over 300,000 people are now living under new governing frameworks we’ve drafted with them.
In passing those laws, all of those communities crossed a line a line that has been carefully etched by a corporate minority who have used the law to place all real decision-making and thus all real governing – beyond the authority of we the people.
As they watched, people in these communities saw the Pennsylvania Legislature work overtime, on behalf of the agribusiness industry, drafting state legislation to preempt the anti-corporate farming and anti-corporate sludge ordinances communities had adopted.
For over five years, those communities joined hands with each other to stop those bills aimed at nullifying their local laws. In support, our organization led a statewide coalition of environmental, labor, municipal, and farm groups to run interference for those communities. Together, we successfully kept that republican-driven legislation from becoming law each legislative session from 2000 to 2005.
All of that changed, however, when a liberal democrat from Philadelphia became Pennsylvania’s governor. Governor Eddie Rendell quickly known in our circles as Fast Eddie – pulled something off that even the republicans couldn’t for those five years.
He put together a coalition of legislators that passed a bill even worse than the bills we had beaten back. His bill authorized the Pennsylvania Attorney General to sue our local townships to overturn their ordinances.
Five months ago, the Attorney General filed the first lawsuits against four townships under Rendell’s law.
Now, when the power and authority of the state from the governor’s office to the Attorney General’s office to the offices’ of their legislators all join together to override lawmaking by majorities, it doesn’t take belief in a Tom Linzey or a Richard Grossman to figure out that something is fundamentally illegitimate in a system in which our own governmental institutions are almost always on the side of property, commerce, and corporations; and almost never on the side of local control, rights, communities, and nature.
That structure can’t be deemed a democracy. It can, however, be rightly defined as a corporate state. The prospect that we actually live in a corporate state and not a democracy is now dawning on community leaders and elected officials across rural Pennsylvania.
To which I explain that if we truly live in a corporate state and I think the data is pretty much in on that one and the constitution is the trump card used like rebar to support this concrete structure of law, then our work must focus on actually replacing our Property and Commerce Constitution with a Rights and Nature Constitution. Otherwise, I explain, we will always be beaten by the constitutional trump card plunked down last by a corporate few.
Which is usually where my lawyer friends the ones that I have left – run away as fast as they can.
But folks in rural Pennsylvania aren’t running away. Instead, they’re turning directly into the storm – not because were telling them that they should, but because they’ve seen how the system works, and understand that creating a new system is the only option they have left.
It is thus disobedience born from desperation.
Yes, people are taking self-governance very seriously in the Keystone State. They’re challenging you to get serious with them.
On September 19th, Tamaqua Borough in Schuylkill County, Pennsylvania, via Ordinance Number 612, became the first municipality to adopt a new generation ordinance, becoming the first municipality in the United States to recognize the rights of ecosystems and natural communities. On September 27th, Rush Township in Schuylkill County became the second. On October 16th, Blaine Township in Washington County became the third.
In addition to those new generation ordinances, some Pennsylvanians have begun to recognize the need to do battle with a property and commerce constitution by writing their own rights and nature constitutions. Several communities have now taken the first steps to write those constitutions under Pennsylvania’s home rule laws.
Two weeks from now, the residents of St. Thomas Township, Franklin County; and West Pike land Township, Chester County, Pennsylvania will be voting on whether to create a new constitution for their municipality one that may fundamentally challenge current constitutional underpinnings.
All of those efforts across Pennsylvania are being supported by, and driven by, our Daniel Pennock Democracy Schools named in honor of Danny Pennock, a boy who died after being exposed to sewage sludge in Central Pennsylvania. Our three-day activist training schools are now open at a dozen locations across the United States.
In response to requests from community activists energized by this work, we recently hosted our first annual campaign school in New York’s Hudson Valley two months ago, with attendees from Virginia, Alaska, Massachusetts, New Hampshire, New York, Pennsylvania, Ohio and California. That gathering is now helping to give birth to new campaigns that reframe problems and design new strategies that take aim at the corporate state.
In response to requests from institutional and individual philanthropists, we’re also hosting our First Funders Democracy School Retreat in Southwestern Virginia the second week of November.
Where will all of this lead? I believe that we are lending support to the first stirrings of a real peoples’ movement that is seeking to establish a rights and nature jurisprudence a structure of law that places the rights of people, communities, and nature above the claimed rights of property, commerce, and empire.
Eventually, it may result in five hundred to a thousand Pennsylvania communities writing new governing structures which may, in turn, drive a rewrite of the Pennsylvania Constitution. Those communities will then join hands with others in other states to drive a rewrite of the federal constitution.
Crazy? Maybe, but I ask myself what’s the alternative? Watching this planet continue to implode.
It’s not work for the fainthearted. Many of our friends in Pennsylvania are putting their reputations, their families, and in some cases, their lives on the line.
In those places, they’ve given up hope that the legislature will help them, that the courts will help them, that environmental groups will help them, or that state agencies will help them. Instead, they’ve turned to the same place that the abolitionists and suffragists turned, to the same place that the populist farmers of the 1890s and the American revolutionaries turned to themselves and to each other.
Giving up hope that someone else will save them thus is becoming a beginning, not an end.
As author Derrick Jensen put it recently in an article entitled “Beyond Hope”:
A wonderful thing happens when you give up on hope, which is that you realize that you never needed it in the first place. You realize that giving up on hope didn’t kill you. It didn’t even make you less effective.
In fact, it made you more effective because you ceased relying on someone or something else to solve your problems you ceased hoping your problems would somehow get solved through the magical assistance of God, the Great Mother, the Sierra Club, valiant tree sitters, brave salmon, or even the earth itself and you just begin doing whatever it takes to solve those problems yourself.
When you give up on hope, something even better happens than it not killing you, which is that in some sense it does kill you. You die. And there’s a wonderful thing about being dead, which is that they those in power cannot really touch you anymore. Not through promises, not through threats, not through violence itself. . . When you give up on hope, you turn away from fear. And when you quit relying on hope, and instead begin to protect the people, things, and places you love, you become very dangerous indeed to those in power.
In case you’re wondering, Jensen writes, giving up hope can be a very good thing.
Reprinted with permission from Tom Linzey.