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Friday, September 13, 2013

WHY DO CORPORATIONS HAVE MORE RIGHTS THAN RIVERS?







This is a fascinating question. The most fascinating thing about it is the way my mind reacts to it. Why, I have to ask myself, am I so annoyed by this question? “Don't you know,” my mind answers as my eyes roll, “that corporations are groups of people and rivers are simply property?” I have this reaction because, as a lawyer, I am particularly indoctrinated into our current system of laws, but there is more to it than a simple legal answer, isn't there? There is pain. Laws protecting the rights of corporations have allowed them to destroy rivers.


But first a little historical context:  Simply by being born as a “person” in the United States the Constitution gives you certain fundamental, inalienable civil and political rights. We call them “fundamental” because you get them by virtue of your birth and “inalienable” because you can't sell them. If you are not a “person” under the Constitution you better get yourself a movement to become a “person” (hello abolitionists, hello women's rights movement) or you will not enjoy the protections of these rights. 


Unlike rivers, Corporations are granted the significant Constitutional rights of people through the concept of “personhood.” I know what you're thinking, what the hell is a “personhood.” According to the game the division is animal vegetable or mineral, right? Then animal is divided into people and not people. Dogs are not people. Rivers are not people. That much is clear. So why do corporations get to be people? Well, there is natural law (gravity) and man-made law (stop on red) and, although we are stuck with the first, we humans take much artistic license with the latter.
As early as 1819 the Supreme Court of the United States allowed groups of real people to claim the protections of the Constitution for their corporations. By 1830 the idea was well established and even Chief Justice Marshall stated, "The great object of an incorporation is to bestow the character and properties of individuality on a collective and changing body of men." One of the most fascinating things about that 1819 date is the fact that black people weren’t given equal protection as “people” under the Constitution until the 14th Amendment was enacted in 1866. And it took until 1971 for the Supreme Court to decide that the 14th Amendment also allowed women access to the protections of the Constitution. So, in essence, corporations were people in the United States before blacks were people and close to two hundred years before women were people.
With that historical context, I hope I have set the stage for this big mind opener: the legal definition of “people” is as flexible as we collectively desire it to be. We made up the word, we've changed the definition to suit changes in our collective cultural agreements in the past and we can do what we want with that definition in the future.
So far we have decided that the environment is not “people.” When the slaves decided that they wanted rights they fought to be “people” not to establish a Slavery Protection Agency because establishing such an agency would be tantamount to agreeing that slaves are not “people” but possessions that need certain regulatory protections. The environmental movement, however, has thus far implicitly agreed that the environment is nothing more than a possession. This is why the environmental lawyer Thomas Linzey likes to say that there has never been a real environmental movement in the United States.
The only way to save the environment, Linzey says is to create a new “framework of governance.” We need to change the Constitution, or at least our interpretation of it, as we have done before, to include environmental rights.
“To my mind,” says Linzey “the fact that environmental rights have not been driven into the constitutional framework, that nature has no rights, that nature is property, indicates that we’ve never had an environmental movement in the United States and that we’ve been wasting our time with regulatory agencies, with regulatory enforcement, and with drafting the regulations—all those good things. Keep in mind that the verb “to regulate” postulates that what is regulated has been allowed. We take for granted that what we regulate will be on-going. In spite of all our work in the regulatory arena, according to every major environmental statistic in the United States things are worse now than they were forty years ago. Ninety-six percent of all original forests have been logged; 50 percent of plants and 11,000 animal species now face extinction on the planet; 50 percent of waterways are now unsafe for recreation or consumption; every year a million acres of land is developed. On and on and on.”
So, why do corporations have more rights than rivers? Because we've decided that it should be so. Because we allow it. Because we want it to be that way. Or do we?
For more information on Thomas Linzey's groundbreaking real environmental movement check out his site.
For your enjoyment here is a link to the U.S. Constitution.
And here is my darling son Julien enjoying the Eel River:




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