… Missed the first
10 minutes of the program
B …It’s the whole idea of privatization.
There was a term for it back in the 1600s in England when the people were being thrown off of farm land,
and fences and enclosures were set up. And the lords and powerful wealthy folks
took over, and disenfranchised thousands and thousands of people. It was the
enclosures, it was a form of privatization.
What it does is it separates
the people from their right to make decisions about what transportation should look like in Pennsylvania. I mean, why shouldn’t that be community decision, why should it be a private,
corporate decision about how transportation should be practiced in this state, or in this nation.
These are fundamental questions
that have impacted our community. The privatization of the Turnpike is no different from the idea of privatizing Social Security
or Medicare. What we do is we put a middle man in the middle of it to make a profit off of it.
Certainly that is not going to be a better way for the community. It will
certainly benefit a minority of people who will make quite a bit of profit off of it.
M Let’s get back to. the community question, and lets assume
that a developer comes in, and sees a beautiful piece of property, and it’s zoned for maybe 500 homes, but of course
they want to make more money, and they want to build more town houses, and they go to court, or commissioners, etc, and say
this is what we want. The citizens get up in arms, hire legal help, because they
don’t want all that coming. What is the difference in the rights of the
citizens in that situation vs. the rights of the developer?
B Well it all goes back to what is this zoning thing about,
to begin with/ Zoning is a system of land use laws, put together by the state legislature, but at the urging of the folks
like the real estate industry and the builder’s associations and so forth. It works to the benefit of the minority of
people who make a profits off of land use decisions. Zoning does not allow communities to say we don’t want certain
projects to come in, all zoning allows the community to do is say where a particular project comes in. For instance, this area will be industrial, that area will be agricultural, this area will be commercial. But anything deemed legal use must be allowed to come in. Communities cannot say “no.” Legal use is of course nuclear power plants and landfills and
any other obnoxious thing that you can think of that a community might not want in the middle of it.
Now it is not an academic
question, going back to the idea that corporations have been deemed to have constitutional protection. Because if a corporation and its representative have filled out the proper paperwork, and they want to
set up a landfill, lets say, and all of the paper work is in order. It is illegal
for the community to say “no” to the landfill.
M It’s illegal?
B Its illegal. Because a landfill has been deemed a legal
use by the state legislature. And the communities don’t have the authority to make a governing decision in that regard. Now the corporation as a fictional legal person, has very interesting rights. For example, the 5th amendment protections, not to be denied it’s
property without compensation. In other words, the government can’t take property without giving some kind of payment
to the owner. Now the corporation, as a fictional person, sends its lawyers in,
who say if you deny us the right to set up this landfill, that is a denial of our right to make future profits. And that is taking something that belongs to the corporation, without just compensation. And therefore
is a violation of the corporation’s 5th amendment rights. Now
you ask, what about the people’s right not to have a landfill, and the simple fact is that they do not have that right
under our structure of law.
M Why not?
B I’m going to go back and do a little history for
you. I mentioned the 14th Amendment, and 1886, and the decision of the opening volley that gave corporations constitutional
…
M I would like to pause for a moment and clarify.
This is not an issue in which you are against corporations of the right to make money, that’s important.
B Yes, absolutely, that is what people do, they engage
in business, and trade and commerce and agriculture, and all these things are
naturally what we do as human beings.
M What are the issues of law that you are concerned with. I found
your history fascinating.
B What is unnatural is that corporations
have gotten more rights than actual citizens, than people in this country. Back in 1868, the Iowa Supreme Court Justice, John
Forrest Dillon, he had been a railroad lawyer, you can imagine the kind of cases that he took. He wanted the railroad, and
he went up against municipalities, municipal corporations, when they didn’t want, for instance, the railroad tracks
running right through their town. He would argue their cases.
He would point to the Iowa
Supreme court in an 1868 case called Clinton vs. Cedar Rapids
and the Missouri River RR. He handed down a decision that eventually boils down
to this: He said that municipal corporations, in other words what we use as local governments in this country, do not have
self-governing rights. As a matter of fact, he said very plainly, that there
is no such thing in this country as a right to local self-government. Now his decision stood in Iowa,
and applied to Iowa’s municipalities for quite some time.
But in 1907, there was a
case right here in Pennsylvania, Hunter vs. Pittsburgh, that went to the US Supreme court in 1907, referred to John Dillon’s
argument, and said essentially ‘ditto’ – we apply that ruling to every municipality within the US. So in one fell swoop, the US Supreme Court transformed the nature of local governments
from self-governing communities, within the Federal system, to extensions of State legislatures in every state. And when I say that, I mean John Dillon was very clear, he said “municipal corporations have the
same relationship to their state legislatures as children have to their parents.
M So our local communities are considered little children, who
have to obey the state legislature.
B Absolutely, and actually it is even
worse. Our municipal government, are colonies of the state.
M Then what’s the purpose of even having a local government?
B Well, you won’t hear this talked about in polite
company, in Pennsylvania, or in other states for that matter, because people
like to believe that in the American system, they have an absolute right to self government, and in their communities, they
have a right to make decisions about whatever is going to fundamentally affect their quality of life. The fact is, they have
been stripped of their authority. Their self-governing authority has been usurped. And in 1907, that court case is emblematic of it.
Of course it has been upheld by other court decisions. And we have a situation today, where you say do we have democracy
in this country, and do we have self-government at the local level. And the answer
is “absolutely not.” We have been denied that.
M I understand and have read that Enron used
this corporate personhood to deny the federal government for a long time the ability to look at their books and to discover
their problem. They claimed that they had the right to keep that private.
B That’s absolutely right. The corporations were given the 4th amendment protections against illegal sesarch and seizure,
or unwarranted search and seizure. And that has been interpreted and argued by
corporate lawyers to mean that if OSHA wants to come in and inspect the workplace, they first have to come in and give prior
notice to the corporation that they are going to show up.
M And I assume the corporation then goes to court, and keeps
them busy, and cleans up everything in the meantime.
B Well, it certainly to their benefit, and it certainly doesn’t benefit
the workers and their right to a safe workplace.
M Okay, let’s get back to the history and you were saying
that the Supreme Court found that corporations were…….. (sound was interrupted)
What else occurred after that?
B Well, two facts: The fact that corporations were found to be persons, and the fact that municipal corporations (our local
governing entities) do not have governing authority. Those two facts, in tandem,
have put us in a box. Now we’re led to believe that we have a way out, that there is a way to resolve the kinds of harms
that we are concerned about. And we’re handed the regulatory system. The
regulatory structure of law, like we have the Department of Environmental Protection, we have our zoning board, and we hire
our lawyers, our land-use lawyers, and expert witnesses to challenge odious projects, and we show up and we testify vehemently
about what we don’t want to happen in our communities.
But in general most people
don’t understand that the very structure of law that hands the regulatory system as their way out, actually puts them
into a box that they cannot get out of at all. The regulatory system gives the
illusion of a remedy. The lawyers like to say “Justice is defined as for
every legal harm, there should be a legal remedy.” We have the illusion
of a remedy with the regulatory system, but in fact there is no remedy at all, because the right to make governing decisions
has been pre-empted and usurped.
M Let me ask you a question.
You indicated to me that the citizens come before lets say, the county
commissions, and they can listen, but they in no way have to take their comments into consideration in their decision making.
But yet if a corporation comes before them, they must include their comments in their decision making. Is that correct?
B That’s absolutely right
M The citizens don’t have to be heard, but the corporations
do?
B Well, no, the laws provide that there will be time for
public comment, along with the various regulatory agencies.
M Talking out loud and being part of the decision making is a
big difference.
B There is a big difference between making comments and
giving opinions, and actually making a decision that has the weight of law behind it.
And what happens when we show up at a hearing, the microphone is in front of us, and we get to stand up and say whatever we want to about how a nefarious project will impact our lives and the future
of our community. I’ve been to hearings where the citizens testifying have directly asked their DET, the zoning boards,
their various regulatory agencies, pointedly asked “Will my testimony be considered in the decision making process?” And the answer invariably is… well there is invariably a question asked, “Are
you testifying as an expert witness.” And usually the citizen will say
“No, I’m a citizen, and I’m concerned.” So in other words, the answer comes back, “You’re
not testifying as an expert, you don’t have credentials to back up what you are saying with any kind of scientific data,
and so forth, and in fact this case, no your comments and opinions will not be weighed in the decision making. Not only are re partly not considering it, we are barred from considering it.”
M You’re barred from considering it?
B Well, its not expert opinion. When you think about what community groups usually do –
form a local group, get your neighbors together, raise some money so you can hire a lawyer, and bring in expert witnesses
to a hearing. For instance traffic, or the impact from runoff from Wal-Mart or
conglomerates paving into their local stream. You bring in your expert witnesses,
those folks will be heard, and their testimonies will be recorded and considered. But
only as it bears on the regulations that are on the books. And the regulations
that are on the books, and the regulatory laws that govern these projects, and I’m talking about any one that that you
can name. This essentially have been put on the books by the industries, their lobbyists and the lawyers they hired to write
the bills, which they then hand to the elected law makers, who then bring them to the floor, and bring them to a vote. And
of course then we have to obey the laws, that have been written not by us, but
for us.
M And these are being written more and more by corporations, and there would be more
large corporations.
B Well you know,
it is not corporations have in the past as a ___________(?) rule. Early
on in this nation’s history there was a real suspicion about corporations. You know the Boston Tea Party, when they
dropped about a million dollars worth of tea in the Boston Harbor. That was tea that belonged to the English East India Company. The East India Company was manipulating the tax structure for the colonies because frankly the members
of Parliament in England, there wasn’t one of them that wasn’t pretty heavily invested in the East India Company,
and when it did well financially, they did well financially. So quite honestly,
the Parliament had more interest in serving the interest of the corporation than they did in serving the interests of the
people living in the American colonies.
M Do you think that is true today in the United
States? The government is more interested in
serving the corporations that serving the citizens.
B You know, I think it’s, I won’t speak for
every individual that has served in government, but the fact is that our structure of law is put together, so that the law
itself serves those interests. And quite frankly, it doesn’t matter who
sits in those offices, and what their opinion is, and what their feelings are, once the structure is in place, we’re
stuck with it, until the people decide to do something different, until they decide to actually make the law themselves, and
believe that they have the competence to do that in their own communities. They
go back to their own communities because again, if you are not governing where you live, where in the world do you have democratic
governing authority.
M Okay, what can we do about this?
B Well, that’s the million dollar question. What
it comes down to is that people have to begin to believe that it is their absolute right, the idea of self-governance where
they live. The work that the Legal Defense Fund is doing, the work that I do
with communities, when I go out and organized communities, and assist local government throughout Pennsylvania. What we do is write laws that directly confront the preemptions and usurpations of
local governing authority. Because quite frankly, there are illegitimate laws
and illegitimate preemptions. In the Pennsylvania
constitution, Article 1, Section 2, it is pretty clear that the source of all governing authority is the people. They don’t really have to go to anyone for permission to write the laws that they need to write,
to protect the communities from damage, their families from harm, and their environment from destruction. And they need to
do it now. In fact, the way into local self-governing, is to self govern.
M That brings up the question that I understand about the ways
to do it is home rule, but not a menu home rule – but a home rule started by the interest of the citizens. Would you
talk about that?
B I think when you say the menu for home rule, you are
referring to are the various optional forms of government that municipalities may choose from.
And when I say municipalities, I’m talking about Counties, boroughs, cities, townships – they all have
the authority at this point to draft home rule charters – local constitutions. This is something that is relatively
new to Pennsylvania. It was a reaction to the preemptions that began back in
the beginning of the 20th century that were so blatent and stark. In
1968, Pennsylvania had a Constitutional convention, and opened up part of the
state constitution and altered some of it. One of the sections that they altered at that convention had to do with local government.
And the right to home rule, local home rule, was added to the Pennsylvania constitution. In 1972, the state legislature got around to passing the statute, that is the instructions
to municipalities on what is the process to adopt a home rule charter locally.
M What exactly is home rule?
B Ideally (ideally is different from what the state legislature
allows), but ideally local home-rule would be local self-governance. That is the direction that we are working with communities
to take these home-rule charters. The state legislature has limited home rule powers in various ways, but we think that they
are illegitimate limitations in many areas, and its time for communities to pursue writing their own local constitutions in
order to establish self-governance.
M Now I have heard the term , and would this be part of home
rule – the establishment of corporate non-personhood zones? That a corporation
would just be a business?
B Well it is something that has actually happened in the
state of Pennsylvania and in some other states that Legal Defense Fund has worked
with. Not within home rule charters, though I think that’s the direction that we think things need to go. But within local ordinances. There have been ordinances past
in a number of communities in Pennsylvania, that strip corporations of their
constitutional authorities and privileges. In other words, where corporations will often send their lawyers into communities
to challenge their local laws, and have them overturned, and preempted by state legislature, there are now communities in
Pennsylvania, that have passed local ordinances, that say that corporations do not have that legal authority to come in and
trump and overturn local laws.
M But the corporations can still do business, they can still
seek to earn profit, it doesn’t take away any type of situation like that, correct?
B Well, corporations aren’t people. These ordinances don’t strip any people of the right to engage in business. What they do is make sure that there aren’t any special privileges handed to a small handful of people. You know the average large corporation has maybe 12 directors. Often times corporations come into communities with unwanted projects, they have maybe 3 –6 officers
and directors. 3-6 people trumping the will and the desire of thousands of people in the community, that’s the structure
of law we are living under right now.
M Well let’s assume that we did have an ideal home rule
in a county in Pennsylvania, how would it be different than exists today? Would it operate differently?
B Yes, I mean I think that, when we think what is an ideal governing structure,
we often go back and we say the US Constitution – they tried to make that something approximating that, but frankly
the Bill of Rights that was added to the end of the US Constitution, was added on actually under duress. The Federalists who
wrote the governing document of the US Constitution, knew they couldn’t get it adopted and passed in the Colonies if
they didn’t include the Bill of Rights, in order to get the anti-Federalists to go along with it. I think we’re
at a point where we need to have laws written, with rights as their basis, instead of as an afterthought. Where we start with
a charter that recognizes the rights of the people local to self-government, the right to the people to a quality of life
and a character of their community that is safe. Have the authority to determine, and begin there enumerating and expanding
rights. And then draft the structure of how we’re going to actually enact this in the community. Sometimes we get it backwards, we say “Let’s start with a mayor or no let’s start with
a council, or let’s start with supervisors… Why not start with rights and see what you need, what form or structure
of government, what types of services you need to put together in your local constitution that will uphold and enforce those
rights.
M Now I understand and part of this you start with, and I applaud
it, you start with understanding and knowledge. And you run schools for democracy. Could
you tell me a little bit about those?
B Sure, we do democracy schools about 5 times a year here in Pennsylvania,
they are weekend long. They are called seminars if you like, they start on a
Friday night, and we go through all day Saturday and most of Sunday, covering a whole lot of history, covering the preemptions
of self government that have occurred over American history, uncovering the truth about our regulatory system. We act as thought that’s our way out of our problems, when in fact it’s a way to stay in the
problems. We look around our communities, after 40 years of having environmental law, and zoning set up the way it is, things
should be so much better at this point, and at this point it is so much worse. We
need to uncover why that is. It has to do with our legal traditions, our precedent
in law, and our legal structures. And we have to understand where they came from first, so we can know what we can do to change
them to serve the communities …… (Mary Ann interrupts)
M How will they get information?
B Well, our website, CELDF.org has a lot of information
on it. I want to say that we offer these schools in a lot of other places around the country at this point. We’ll probably do about 150 of them around the nation this year.
And we also offer one day versions in communities where there are campaigns on-going. And the work that I do in communities
is helping them get campaigns up and off the ground to pass local laws that expand and establish local democracy.
M Ladies and Gentlemen, I would like to mention (turned tape over). …. a time schedule and keep tuned into this program for more information, because
we are going to be proceeding into looking into home-rule in Pennsylvania. What other things would we need to know Ben, for home rule?
B Well for home rule, there’s a process to go through that is based on
an initiative and referendum process in Pennsylvania. Our citizens don’t
have much opportunity to exercise an initiative and referendum authority but this is one area where they do. So with a relatively small number of signatures, communities can change their local form of government,
get a question on the ballot, and ask their neighbors to vote for it.
M What would this question be?
B Well, it is a 2-step process. The first petition asks
should a government study commission be formed. It would be empowered to review
the local government, to report on how well or poorly it’s working. And the second thing it would be empowered to do
is write a home-rule charter, that would then be presented to the community for
a vote. So there would actually be two different election cycles involved here – first to form a government study commission,
second to either pass or turn down a proposed charter.
M So this is really an interesting way to find out what exists
now in your community, and could you make it better without any commitment?
B Well it really is, when you think about a government
study commission, I think that there’s so little information out there
in the public’s consciousness about how our local government municipalities work and what relationship they have to
our state and federal system. It certainly is a great way to uncover that, because until we understand what those power relationships
are at the various levels of government, it will be impossible for us to get beyond the situation where we find ourselves
in now, where we are being dictated to, what we must accept in our communities. And
it is changing our communities in very negative ways.
M Well we’re going to winding this up now. Could you leave our audience with both the danger and the opportunity that could be facing us in the future.
It seems to me we have two paths that we may take.
B Well, there are at least 2 paths, maybe 3. One is we could do nothing. That’s not really a path, I guess. Another is that we could follow the
advice of our state legislatures and our land use lawyers, and our local solicitors and work our way through the regulatory
system of law that has been set up for us, essentially set up for us to fail in. Or we can believe that we are confident to
be self-governing people and make those decisions. And in a sense, pick a fight
with those who would deny our authority and right to be self-governing people. I’m not talking about violence, I’m
talking standing up and asserting your authority to self-govern. And then actually doing it.
M That is what we have to do.
We would like to have you back for the next step. We will be posting your
information on our website, and let people know when we will have a school in this area.
Thank you very much.
