Some countries in the Western Hemisphere have given constitutional rights to non-human entities — with opposite effects on their democracies. While Ecuador and Bolivia stand to strengthen their democracies by declaring human-like rights for Pacha Mama, that is, Nature, the United States, has weakened its democracy by giving human rights to the business Corporation. Ecuador and Bolivia take from their indigenous Andean people a tradition of reverence for Nature as a living being, which encompasses human and all other life.1 In 2008, Ecuador held a national referendum and resoundingly approved a new constitution, in which “Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.”2 And last year Bolivia, following adoption of a new constitution, wrote similar rights for Nature into its laws. Now persons and communities in those countries, where oil and gas drilling, and mineral mining have ruined much land, and farming has cleared much rainforest, can petition the government on behalf of Nature to stop such damage.3 In contrast, the United States takes from its founders a tradition of respect for the “unalienable Rights” of the individual.4 Its 223-year-old constitution has stood to protect those rights, and makes no mention of the Corporation.5 But in 1886, the Supreme Court reporter led his summary of a run-of-the-mill Supreme Court case with a claim that the court had never ruled on — “The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws.”6 Later court rulings mistakenly used that claim as precedent, and wrongly gave the Corporation equal protection rights.7 Since then, the courts have stretched that errant precedent to give other human rights, such as free speech and privacy, to the Corporation, which has used them to overturn health, safety and environmental laws made by elected legislatures.8 9 But last year’s Supreme Court ruling using the right of free speech to allow the Corporation to pump unlimited money into elections has fueled a movement to amend the U.S. Constitution to state what the average child could tell you: that the Corporation is not a real person, and does not have human rights.10 13 11 12 When backed by a constitution that bans human rights for the Corporation and recognizes human-like rights for Nature, a nation’s elected governments — local, regional and national — may better uphold the people’s will for health, safety and a natural environment.
The law, which is part of a complete restructuring of the Bolivian legal system following a change of constitution in 2009, has been heavily influenced by a resurgent indigenous Andean spiritual world view which places the environment and the earth deity known as the Pachamama at the centre of all life. Humans are considered equal to all other entities.
Bolivia has long suffered from serious environmental problems from the mining of tin, silver, gold and other raw materials. “Existing laws are not strong enough,” said Undarico Pinto, leader of the 3.5m-strong Confederación Sindical Única de Trabajadores Campesinos de Bolivia, the biggest social movement, who helped draft the law. “It will make industry more transparent. It will allow people to regulate industry at national, regional and local levels.”
Foreign Minister David Choquehuanca said Bolivia’s traditional indigenous respect for the Pachamama was vital to prevent climate change. “Our grandparents taught us that we belong to a big family of plants and animals. We believe that everything in the planet forms part of a big family. We indigenous people can contribute to solving the energy, climate, food and financial crises with our values,” he said.
In the indigenous philosophy, the Pachamama is a living being.
The draft of the new law states: “She is sacred, fertile and the source of life that feeds and cares for all living beings in her womb. She is in permanent balance, harmony and communication with the cosmos. She is comprised of all ecosystems and living beings, and their self-organisation.”
Article 71. Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes. …
Article 72. Nature has the right to be restored. …
Article 73. The State shall apply preventive and restrictive measures on activities that might lead to the extinction of species, the destruction of ecosystems and the permanent alteration of natural cycles.
The introduction of organisms and organic and inorganic material that might definitively alter the nation’s genetic assets is forbidden.
Article 74. Persons, communities, peoples, and nations shall have the right to benefit from the environment and the natural wealth enabling them to enjoy the good way of living. …
The origins of this apparent legal tidal shift lie in Ecuador’s growing disillusionment with foreign multinationals. The country, which contains every South American ecosystem within its borders, which include the Galapagos Islands, has had disastrous collisions with multi-national companies. Many, from banana companies to natural gas extractors, have exploited its natural resources and left little but pollution and poverty in their wake.
Now it is in the grip of a bitter lawsuit against US oil giant Chevron, formerly Texaco, over its alleged dumping of billions of gallons of crude oil and toxic waste waters into the Amazonian jungle over two decades.
It is described as the Amazonian Chernobyl, and 30,000 local people claim that up to 18m tonnes of oil was dumped into unlined pits over two decades, in defiance of international guidelines, and contaminating groundwater over an area of some 1,700 hectares (4,200 acres) and leading to a plethora of serious health problems for anyone living in the area. Chevron has denied the allegations. In April, a court-appointed expert announced in a report that, should Chevron lose, it would have to pay up to $16bn (£8.9bn) in damages.
The laws would have particular relevance in the Yasuni national park, one of the world’s most biodiverse areas and home to at least two “uncontacted” Amazonian tribes. It is also “home” to a possible 1.2bn barrels of untapped crude oil, which companies want to extract.
“The hope is that the new laws will give us unprecedented legal muscle to protect areas like this where there are competing interests,” says Linda Siegele, a lawyer for the UK-based Foundation for International Environmental Law and Development.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
The very first sentence of Davis’s note reads, “The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws.”
That sentence was followed by three paragraphs of small print that summarized the California tax issues of the case. In fact, the notes by Davis, farther down, say,
“The main—and almost only—questions discussed by counsel in the elaborate arguments related to the constitutionality of the taxes. This court, in its opinion passed by these questions, and decided the cases on the questions whether under the constitution and laws of California, the fences on the line of the railroads should have been valued and assessed, if at all, by the local officers, or by the State Board of Equalization…”
In other words, the first sentence of “The defendant Corporations are persons…” has nothing to do with the case and wasn’t the issue on which the Supreme Court decided. Two paragraphs later, perhaps in an attempt to explain why he had started his notes with that emphatic statement, Davis remarks:
“One of the points made and discussed at length in the brief of counsel for defendants in error was that “Corporations are persons within the meaning of the Fourteenth Amendment to the Constitution of the United States.” Before argument Mr. Chief Justice Waite said: “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.”“
A half-page later, the notes ended and the actual decision, delivered by Justice Harlan, begins—which, as noted earlier, explicitly says that the Supreme Court is not, in this case, ruling on the constitutional question of corporate personhood under the Fourteenth Amendment or any other amendment.
There has been much misunderstanding about this Court decision. Despite the issue being raised in arguments, the Justices offered no written opinion on the question of whether corporations should be considered “persons” and enjoy the protections of the 14th Amendment. The Court reporter’s notes, however, quoted Chief Justice Waite declaring that, “We all are of the opinion” that the 14th Amendement applies to corporations.
Many people (rightfully) are outraged that a Court reporter could turn the Bill of Rights and 14th Amendment on their heads, which effectively is what occured once Santa Clara was cited as precedent in subsequent cases. However, the fact that the Justices never issued an opinion on “corporate personhood” lost its legal significance once they cited the case
Once corporations had jumped the constitutional line from the government side to the people side, their lawyers proceeded to pursue the Bill of Rights through more Supreme Court cases. As mentioned above, in 1893 they were assured 5th Amendment protection of due process. In 1906 they got 4th Amendment search and seizure protection (Hale v. Henkel). In 1922 they got the “takings” clause of the 5th Amendment (Pennsylvania Coal Co. v. Mahon), and a regulatory law was deemed to be a “takings.” In 1936 (Grosjean v. American Press Co.) and 1947 (Taft-Hartley Act) they started getting First Amendment protections.
In 1976 the Supreme Court determined in Buckley v. Valeo that money spent for political purposes is equal to exercising free speech, and since “corporate persons” have First Amendment rights, they can contribute as much money as they want to overturn ballot initiatives or referenda (First National Bank of Boston v. Bellotti). Every time “corporate persons” acquire one of these protections under the Bill of Rights, it gives them a whole new way of exploiting the legal system in order to maintain minority rule through corporate power. And since 1886, every time people have won new rights – like the Civil Rights Act – corporations are eligible for it, too.
(9) ‘Sins of the Fathers: How Corporations Use the Constitution and Environmental Law to Plunder Communities and Nature’ by Thomas Alan Linzey, Esq. – Executive Director – The Community Environmental Legal Defense Fund, Inc., Thursday, March 4th, 2004, University of Pittsburgh School of Law”
Several years ago, cell phone corporations sued a Pennsylvania municipal government for denying them authority to build a cell phone tower. Not content with asserting their rights as persons under the Constitution to strike down the law, the telecommunications corporation demanded attorneys fees and damages from the municipal government under the authority of Reconstruction-Era Civil Rights Statutes originally adopted to protect African-Americans from government sponsored discrimination.
As persons, corporations have pioneered the concept of “regulatory takings” in which local and state governments can be sued for the value of property “taken” by the enforcement of an environmental regulation.
As persons, corporations cannot be subjected to unannounced searches by OSHA and other regulatory agencies under the Fourth Amendment to the Constitution. Corporations are now guaranteed by law participation in our elections and issue discussions under the authority of the First Amendment.
Joined by the other three members of the court’s liberal wing, Justice Stevens said the majority had committed a grave error in treating corporate speech the same as that of human beings.
The basic premise underlying the Court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its “identity” as a corporation. While that glittering generality has rhetorical appeal, it is not a correct statement of the law. … The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.
In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.
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