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TechnoratiHigh Court Rulings Threaten State 'Labs of Democracy'
How to be sure that toy under the holiday tree has no lead paint? With only a month of shopping days remaining, the public depends -- more than at any other time -- on our federal regulatory agencies' ability to protect us from health and safety risks from toys, clothing and other goods.
So when an appointed regulator asks Congress to prevent her agency from doing its job, we should be concerned. The head of the Federal Consumer Product Safety Commission, Nancy A. Nord, actually asked Congress "not to approve the bulk of legislation that would increase the agency's authority, double its budget and sharply increase its dwindling staff." Small wonder the New York Times put that story on its front page Oct. 29.
Other federal agencies that we might expect to be watchdogs -- the Environmental Protection Agency, the Food and Drug Administration, and the Federal Communications Commission -- are either hamstrung by resources grossly inadequate to their stated tasks, or worse, staffed by anti-regulatory types, like Nord.
Lost in the irony of Nord's embarrassing "no, thanks" is that federal agencies are but one among many ways to address the plethora of challenges we now face.
Remember the 10th Amendment? "The powers not delegated to the United States, nor prohibited by it to the states, are reserved to the states respectively, or to the people." Justice Louis Brandeis famously lauded state and local governments as "laboratories of democracy" that might show the way.
Long before federal regulatory agencies even existed, local and state governments were seeing to their general welfare. Many are still trying. Yet they face considerable opposition not only from corporations being regulated, which we would expect, but from a federal tribunal that rarely gets the credit for annulling their efforts, and then "bumping up" such matters to the underachieving federal regulators. (My new book, "Gaveling Down the Rabble," discusses this in detail.)
Take, for instance, the matter of corporate agriculture. A South Dakota constitutional amendment, passed by 59 percent in 1998, prohibited most corporate ownership of real estate used for agriculture. In 2004, the U.S. Supreme Court effectively threw it out on grounds that it was essentially a "trade barrier."
Nebraska's even stronger anti-corporate agriculture constitutional amendment, first passed in 1982, was ruled unconstitutional in 2006 by a lower federal court, citing the South Dakota case.
The Supreme Court has struck down over 1,200 state and local laws. Following this lead, lower federal courts struck down countless others. The relentless narrowing of what the court deems "constitutional" has a chilling effect on lawmakers at all levels, especially state and local, at a time when we need all the help and ideas we can get.
Other examples of thwarted state efforts abound. Take oil spills, for instance. Washington state regulations aimed at insuring proper training, adequate staffing and other safety measures in the operation of tankers along that state's coastline were declared unconstitutional by the U.S. Supreme Court in 2000. According to the court's interpretation, states cannot impose conditions more stringent than those in a weaker federal law.
This is part of the court's pre-emption doctrine, which it has often applied so that federal law sets not a minimum standard, but a maximum one. Instead of setting a floor for states, the court has set a ceiling, disallowing the more protective laws that many localities desire.
In 1997, a Maine property tax law encouraging in-state charities to serve Maine residents was declared unconstitutional as interfering with "free trade" among the states. In 1995, the Illinois Consumer Fraud Act outlining relief from unfair or deceptive marketing practices was deemed unconstitutional as applied to an airline corporation. In 1994, an Oregon state law intended to reduce the state's burden of handling solid waste from out of state was declared unconstitutional as a "trade barrier" by the Supreme Court.
Other "progressive" state and local laws concerning protection of water resources, milk labeling (rBGH), conservation of fossil fuels, protecting fledgling industries, bans on products made with prison and child labor, protection of native species, place-of-origin product labeling, toxic waste regulations, support for local business, meat handling standards, and on and on, have been deep-sixed by Supreme Court rulings based on increasingly arcane, if not inane, doctrines.
The beneficiaries of this "narrowing" have been, for the most part, big corporations. The high court's pro-corporate doctrines have had the effect of laying down a weighty tarp of "unconstitutionality" over outbreaks of democracy, lest they break out and become pandemic.
Of course, I would like to see strong, functional federal regulatory agencies that do more than act as valets to large corporations. But let's not forget the role that local and state governments can play, have played, and must again play in promoting the general welfare.
Jane Anne Morris of Madison is a corporate anthropologist. Her new book, "Gaveling Down the Rabble: How 'Free Trade' Is Stealing Our Democracy," explores these and related issues.
17 Comments so far
Show AllMany of the decisions cited in the article occured before Bush was President. They have used Roe v Wade for years to divide us and conceal the fact that most of their appointments were, above all, corporatists. In the case of Bush, also unitary executive acolytes.
Where is Jim Hightower's proposed Constitutional Amendment "A corporation is not a person"? when we need it.
I would much rather the Supreme Court protected democracy instead of capitalism, human rights instead of corporate rights and health and welfare instead of profits.
Haven't we learned by now that Dems too are in the pockets of the oligarchy's corporations and banks?
I hope ezeflyer and Gail won't think I'm saying this to intentionally rile them, because I'm not. We the People "privatize" (for the benefit of us "private citizens") by electing wall-to-wall Democrats in response to our disappointments since 2000. It is the easiest and most "possible" thing we can do, and it can be done in less than 12 months.
ezeflyer December 6th, 2007 8:54 pm
"We the People can beat them simply by privatizing ourselves into We the People Inc. with equal shares and dividends from the largest, richest for profit corporation. We can take our profits in money, public health, peace and a healthy environment."
eseflyer,
If it's so simple, when are you going start privatizing "We the People"? It's a great idea, but ideas need to be implemented to be useful.
Nancy A Nord and Co. know they are there to shrink and privatize the government. We the People can beat them simply by privatizing ourselves into We the People Inc. with equal shares and dividends from the largest, richest for profit corporation. We can take our profits in money, public health, peace and a healthy environment.
"The head of the Federal Consumer Product Safety Commission, Nancy A. Nord, actually asked Congress "not to approve the bulk of legislation that would increase the agency's authority, double its budget and sharply increase its dwindling staff.""
It sounds like Nancy Nord is incapable of handling the responsibilities of her position. Perhaps she should resign to "spend more time with her family".
This has been described most succinctly as ROLLING BACK THE 20TH CENTURY. The long-term effects of the radical Right's infiltration of the judiciary from the Supreme Court on down will be the most long-lasting fallout of this regime. Kind of like depleted uranium munitions, cluster bombs and land mines.
When he was still writing for Working Assets Greg Palast warned the liberal camp over and over that the choice of Supreme Court justices was the most important thing Bush could f**k up and he was correct. I don't know if the liberal base is large enough to make a difference and especially with our spineless democrats when the Republicans were (should I use the past tense?) in control of Congress.
And to think we worry about what our present Supreme Court will do for individual citizens? My goodness, with only five out of nine of them members of the church with the single most famous top-down authoritarian hierarchy in the world? Why would we worry that these guys might respect the needs of individuals too little and the wants of institutions to much? It's not like they've been indoctrinated with authority-knows-best their whole lives. Oh, yeah, that's right. They have been. Oh, dear.
Lest someone think I'm knocking religion, or even the Catholic Church, I'm not. But we shouldn't have five members of the Lions Club on the Supreme Court, much less five of them fraternally linked in a particular catechism---and four of those former government lawyers to boot. There is too much "in common", and even the appearance of a problem was enough reason not to make the fifth bird-of-a-feather appoinment
Yet, this was the unbelievable "judgment" of our current president to create this majority. We sure do need a different mindset from a different president for the future appointments.
A huge concentration of power in the one central government, sometimes the one individual, or a handful of individuals, thwarts democracy, stops local evolution to local conditions, and provides a focal point for the corruption of power. Corporations only have to ensure that one ideologically blinded and amenable idiot bends to their will. They can concentrate all their money and influence in the one place. The money and influence are thoroughly welcomed, as having their attention is what defines the getting of power in the USI and probably over the world. The power of corporations would be vastly weakened by having to bribe each and every local state legislature. Centralized control of media and power has killed democracy. It always does.
BernieLaPaz, I see where you are coming from and agree with many of your examples, but I disagree. In theory, the ability to regulate and target racist/discriminatory behavior has already been expressly granted to the federal government via the 13th-15th amendments. So no preemption is needed. I think privacy interests are similarly found in the bill of rights.
But powers not expressly granted are reserved to the states, according to the 10th amendment. And I think preemption is used too frequently to override popular movements that have gained traction in local communities.
Coroporations prefer centralized power because it more easily manipulable and less-accountable. Your state government will think twice about hurting you compared to your federal government, and your city council even more so. Because they're much closer to the people in my view.
"Segregation was done by the states"? Actually it was written into the federal Constitution with the 3/5ths compromise.
Talk about your activist judges.
Please, Please Elect more republicans to the whitehouse and make them a majority in the house and senate.
We should not deny the world the laughing gas these people provide them.
Or put Hillary in there, and watch the country turn into third world nation.
Then the laugh will really be on us.
Love
Zero
When I see the phrases "free trade" and "free markets" I'm reminded that nothing in life is free. "Free markets" is a euphemism for corporate greed, and sticking it to the consumer.
In the United States of Corporation we are no longer citizens but consumers and the more chance we have to earn our livings outsdie the huge corporations the more danger we are to the corporations.
It's not entirely fair to condemn heavy handedness on the Supreme Court overturning state laws. After all, of the 1,200 state and local laws overturned, not all have been pollution and consumer protection laws. Many have been state segregation laws, laws restricting speech, laws restricting women's access to birth control, and otherwise invading the privacy of citizens. Remember segregation was done by states, not the federal government, and was struck down by the Court. As recently as 2003, the Court struck down a law punishing two men for what they did in the privacy of their own home, in Lawrence v. Texas.
Both we and the conservatives laud as just rulings that advance our political agendas where the legislatures will not. And condemn as "intruding into state's rights" those decisions which do the opposite.