Chris Hedges's Blog, page 581

Hawaii’s Ordeal Worsens: Lava Torrents, Flying Rocks, Acidic Air

PAHOA, Hawaii—A volcano that is oozing, spewing and exploding on Hawaii’s Big Island has gotten more hazardous in recent days, with rivers of molten rock flowing into the ocean and flying lava causing the first major injury.

Kilauea volcano began erupting more than two weeks ago and has burned dozens of homes, forced people to flee and shot up plumes of steam from its summit that led officials to distribute face masks to protect against ash particles.

Lava flows have grown more vigorous in past days, spattering molten rock that hit a man in the leg.

He was outside his home Saturday in the remote, rural region affected by the volcano when the lava “hit him on the shin, and shattered everything from there down on his leg,” Janet Snyder, Hawaii County mayor’s spokeswoman, told the Hawaii News Now TV station.

Lava that’s flying through the air from cracks in the Earth can weigh as much as a refrigerator and even small pieces can be lethal, officials said.

The injury came the same day lava streamed across a highway and flowed into the ocean. The phenomenon sends hydrochloric acid and steam with fine glass particles into the air and can lead to lung damage and eye and skin irritation, another danger for residents as the plume can shift with the wind, the Hawaii County Civil Defense agency said.

The highway has shut down in some spots, and residents in the area have been evacuated.

With the problems compounding, scientists can’t say whether lava flows from nearly two dozen fissures will keep advancing or stop.

“We have no way of knowing whether this is really the beginning or toward the end of this eruption,” said Tom Shea, a volcanologist at the University of Hawaii. “We’re kind of all right now in this world of uncertainty.”

The area affected by lava and ash is small compared with the Big Island, which is about 4,000 square miles (10,360 square kilometers). The volcano has spared most of the island and the rest of the Hawaiian chain.

Officials have reminded tourists that flights, including on the Big Island, have not been affected. Even on the Big Island, most tourist activities are available and businesses are open.

Evacuation orders for two neighborhoods with nearly 2,000 people were given after the first fissure opened on May 3. Officials have been warning neighboring communities to be prepared to evacuate.

Lava flows have sped up as fresher magma mixes with decades-old magma, creating hotter and more fluid flows, scientists said. Two fissures had merged by Saturday, creating a wide flow moving at up to 300 yards (274 meters) per hour.

Edwin Montoya, who lives with his daughter on her farm near where lava crossed a roadway and trapped a handful of people Friday, said the fissure opened and grew quickly.

“It was just a little crack in the ground, with a little lava coming out,” he said. “Now it’s a big crater that opened up where the small little crack in the ground was.”

___

Kelleher reported from Honolulu. Associated Press journalists Jae Hong and Marco Garcia in Pahoa contributed to this report.

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Trump’s Strategic Assault on Democracy, Word by Word

Consider us officially in an Orwellian world, though we only half realize it. While we were barely looking, significant parts of an American language long familiar to us quite literally, and in a remarkably coherent way, went down the equivalent of George Orwell’s infamous Memory Hole.

This hit me in a personal way recently. I was asked to give a talk at an annual national security conference held in downtown Manhattan and aimed largely at an audience of college students. The organizer, who had pulled together a remarkable array of speakers, encountered problems in one particular area: his efforts to include representatives of the Trump administration in the gathering. Initially, administration officials he dealt with wouldn’t even divulge the names of possible participants, only their titles, leaving who was coming a mystery until days before the conference opened.

In addition, before agreeing to send speakers, his contacts at Immigration and Customs Enforcement, known by the acronym ICE, had not just requested but insisted that the word “refugee” be removed from the conference program. It was to appear in a description of a panel entitled “Refugee Programs, Immigration, Customs and Border Protection.”

The reason given: the desire to get through the administration approval process in Washington without undue delay. It’s not hard to believe that the administration that wanted to slow to a standstill refugees coming to the U.S. didn’t have an allied urge to do away with the very word itself. In order to ensure that ICE representatives would be there, the organizer reluctantly conceded and so the word “refugee” was dutifully removed from the program.

Meanwhile, the actual names of Department of Homeland Security officials coming to speak were withheld until three days before the event. Finally, administration representatives in touch with the conference organizers insisted that the remarks of any government representatives could not be taped, which meant, ultimately, that none of the proceedings could be taped. As a result, this conference was not recorded for posterity.

For me — and I’ve been observing the national security landscape for years now — this was something of a new low when it came to surrounding a previously open event in a penumbra of secrecy. It made me wonder how many other organizers across the country had been strong-armed in a similar fashion, how many words had been removed from various programs, and how much of what an American citizen should know now went unrecorded.

To some extent, I understood the organizer’s plight, having myself negotiated requests from government officials for 15 years’ worth of national security get-togethers of every sort. As director of the Center on National Security at Fordham Law and before that of a similar center at New York University School of Law, I had been asked by more than one current or former Bush or Obama administration official to not record his or her remarks. Indeed, one or two had even asked to be kept away from the audience until those remarks were delivered.

Still, most had come eager to debate, confident that their views were the preferable ones, aware that the perspectives of many in the room or conference hall would differ from theirs, often drastically, on hard-edged issues like torture, Guantánamo, and targeted killings. But one thing I know: not once in all those years had I been asked to change the language of an event, to wipe a word or phrase out of the program of the moment. It would have been an unthinkable violation.

The very idea that the government can control what words we use and don’t at a university-related event seems to violate everything we as a country hold dear about the independence of educational institutions from government control, not to mention the sanctity of free speech and the importance of public debate. But that, of course, was in the era before Donald Trump became president.

Assaulting the Language of American Democracy

Tiny as that incident was, at a conference meant largely for students but open to an array of professionals, it caught the essence of this administration’s take-no-prisoners approach to the language many of us customarily use to describe the country we live in. Such an assault is, of course, nothing new under Trump. After all, the current president had barely entered the Oval Office when the first reports began to emerge about instances in which language at various government websites was being altered, words and concepts being changed or simply obliterated.

Since then, the language of an America that the president and his associates reject has been under constant attack. Some of those acts of aggression were to be expected, given the campaign promises that preceded his election. Take climate change, which Donald Trump called a “Chinese hoax” long before he filled his administration with rabid climate deniers. The Department of Agriculture was typical. Its new officials excised the very word “climate change” from their website, substituting “weather extremes,” and changed the phrase “reduce greenhouse gases” to the palpably deceptive “increase nutrient use energy.” Across the board, in fact, .gov websites replaced “climate change” with vague words like “resilience” and “sustainability.”

But you don’t have to focus on the urge to obliterate all evidence of climate change, even the words to describe it. Other alterations have been no less notable. For starters, as at the recent conference I attended, there has been a clear rejection of language that connoted the have-nots, the excluded, and the marginalized of our world. At the Centers for Disease Control (CDC), for example, this year’s budget request carefully excluded such descriptors from its mission and purpose statement. Originally incorrectly reported as a policy decision to ban certain words from use at the agency, CDC officials were simply reading the tea leaves of the new administration and quickly ridding their budget requests of key words, now poison in Trump’s Washington, describing their mission. These were words suddenly seen as red flags when it came to the use of government funds to help the less fortunate or the discriminated against. Examples included “vulnerable,” “entitlement,” “diversity,” “transgender,” and “fetus” — and with science now in disrepute for its anti-fossil-fuel findings, also discarded were the phrases “evidence-based” and “science-based.”

The disavowal of marginalized groups and of the vulnerable in society, including those “refugees,” has hardly been limited to the CDC. It also reared its head, for example, in the mission statement of the U.S. Citizenship and Immigration Services, where the label “nation of immigrants” was dropped from its mission statement, which now reads:

“U.S. Citizenship and Immigration Services administers the nation’s lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values.”

Given the latest news from the border of children being torn from their parents and the president’s recently reported cabinet rant about not yet securing the border effectively, no one should be surprised that “security” and “values” have trumped “immigrants” and inclusion in that mission statement. So, too, has such a mindset left its mark on another agency created to help out those in need. The Department of Housing and Urban Development, led by Ben Carson, has ditched the terms “free from discrimination,” “quality homes,” and “inclusive communities” in favor of a mission that supports “self-sufficiency” and “opportunity.” In other words, the onus is being put on the individual rather than the government.

Trump is hardly the first president to discover the importance of language as a political tool that can be self-consciously used for practical ends. Barack Obama, for instance, banished both the name “war on terror” for America’s unending post-9/11 conflicts across the Greater Middle East and Africa and “Islamic extremist terrorism” for those we fought — even though that “war” went right on. Still, the current president may be the first whose administration hasn’t hesitated to delete terms tied to the foundational principles of the country, among them “democracy,” “honesty,” and “transparency.”

Putting a fine point on the turn away from core values, for instance, the State Department deleted the word “democratic” from its mission statement and backed away from the notion that the department and the country should promote democracy abroad. In its new mission statement, missing words also included “peaceful” and “just.” Similarly, the U.S. Agency for International Development’s mission statement veered away from its prior emphasis on “ending extreme poverty and promoting the development of resilient, democratic societies that are able to realize their potential.” Its goal, it now explains, is “to support partners to become self-reliant and capable of leading their own development journeys” largely through increased security (including presumably the purchase of American weaponry) and expanding markets.

Alongside a diminished regard for the very thought of inclusiveness and for helping impoverished nations improve their conditions through aid, the idea of protecting civil liberties has taken a nosedive. President Trump’s first appointee to head the Guantánamo Bay Detention Center, Rear Admiral Edward Cashman, for example, took the words “legal” and “transparent” out of the prison facility’s mission statement. In a similar fashion, the Department of Justice has excised the portion of its website devoted to “the need for free press and public trial.”

A Ministry of Propaganda?

Meanwhile, in a set of parallel moves of betrayal, the dismemberment of agencies created to honor and protect peacefulness and basic civil liberties at home or abroad is ongoing. At the moment, for instance, less than half of the top positions at the State Department have been filled and confirmed. The fallout is clear: ambassadors to countries of major importance in current tension-ridden areas and the very concept of diplomacy that might go with them are missing in action. That includes the ambassadors for Libya, Somalia, Saudi Arabia, South Korea, Sudan, the United Arab Emirates, and Syria. Meanwhile, in the first year of the Trump era, nearly 2,000 career diplomats and civil servants were pushed out of the department and, by the time Secretary of State Rex Tillerson went the way of so many Trump appointees, top posts there had been halved. In an Orwellian world, agencies stripped down to bare minimum staffs and leadership are that much easier to tilt and turn in grim new directions.

Similarly, the Trump administration has all too often endeavored to disavow or obliterate facts. It’s not just a matter of endlessly reported presidential lying and misstatements, but of a wholesale disregard for reality that can again be seen at government websites where factual information of all sorts has been tossed down the memory hole. References to climate change disappeared from the White House website on Inauguration Day 2017. Many references and links to climate change put up during the Obama years were, for example, quickly removed from the State Department’s website, and other agency websites followed this pattern.

Similarly, the White House website wiped out pages focused on federal policies toward people with disabilities, leaving only this message for interested citizens: “You are not authorized to access this page.” Nor does the administration evidently feel any responsibility to issue reports to the public on its activities, including those that might damage respect for Americans worldwide. Recently, the Trump administration missed a deadline for reporting on civilian casualties resulting from U.S. drone strikes, a yearly requirement established by President Obama in 2016. A White House spokesperson explained that such a reporting requirement was “under review” and could be “modified” or “rescinded.”

Such an approach to what should and shouldn’t be known about and available to citizens from a government still theoretically of, by, and for the people has regularly been described as fascist, Stalinist, totalitarian, or authoritarian. More important, however, than any labels is the recognition that, whatever you might call it, there is indeed a strategy at work here. This is, in fact, a far less ad hoc and amateurish administration than pundits and politicians assume. Trump associates like to talk about the in-the-moment quality of present White House decision-making, but the concerted, continual, and consistent on-message attack on words, phrases, and language that offends those now in office seems to contradict that notion.

What we are evidently living through is a coordinated attack on the previous American definition of reality. The question is: Where do such directives come from? Who has identified the words and concepts that need to be deleted from the national lexicon? However unknown to us, is there a virtual minister or ministry of propaganda somewhere? Is there someone monitoring and documenting the progress of such a strategy? And what exactly are the next steps being planned?

Whatever the circumstances under which this is happening, it certainly is a bold attempt to use language as a doorway that will take us from one reality — that of the past 250 years of American history and its progression towards inclusion, diversity, equal rights for minorities, and liberty and justice for all — to another, that of an oligarchically led transformation focused on intolerance, racial and ethnic divides, discrimination, ignorance (rather than science), and the creation of a state of unparalleled heartlessness and greed.

It might be worth reflecting on the words of Joseph Goebbels, the propaganda minister for Hitler’s Nazi Party. He had a clear-eyed vision of the importance of disguising the ultimate goal of his particular campaign against democracy and truth. “The secret of propaganda,” he said, is to “permeate the person it aims to grasp without his even noticing that he is being permeated.”

Consider this a word of warning to the wise. Perhaps instead of hurling insults at President Trump’s incompetence and the seeming disarray of his presidency, it might be worth taking a step back and asking ourselves whether there is indeed a larger goal in mind: namely, a slow, patient, incremental dismantling of democracy, beginning with its most precious words.

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The Iran Threat Is Inflated and Regional War Would Be a Disaster

America’s president is being advised by unhinged warmongers. Pay attention, folks – war with Iran is what men like John Bolton, Secretary of State Mike Pompeo and Israeli Prime Minister Bibi Netanyahu want, and, it’s war they might just get; consequences be damned! With President Trump scuttling the Iran nuclear deal and threatening to impose new sanctions – against the advice of every major European ally – war seems like a genuine, if horrifying, possibility.

Here’s a prediction (though forecasting is always a dangerous game):  President Trump will strike some sort of deal with already nuclear North Korea, vie for a Nobel Peace Prize, and then unleash the U.S. and Israeli military on non-nuclear Iran. The results will be catastrophic.

Israel, no doubt, wants war with Iran, and just this past week blasted dozens of Iranian military sites in Syria. If Netanyahu and his far-right cabal in Tel Aviv want a disastrous, destabilizing war, then let them have it. The problem is that Bibi is counting on big brother Donald Trump and the US to back his play and join the fray. But that war, an American-Iranian conflagration, is not inevitable and ill-advised. The president, a man who ran on a platform of no new “dumb wars” – like the Iraq invasion – and ought to stick to his campaign pledge.

Here’s the bottom line: 1) Iran is neither the threat nor the monster it is billed as; and 2) The actual conduct and results of a major war with the Islamic Republic would be disastrous.

Let’s start with the purported threat of Iran. We are told that Iran is a regional ogre, bent on Mideast dominance and the creation of a new Persian Empire. It is staunchly dedicated to the absolute annihilation of the state of Israel. This all makes for excellent propaganda but is just empirically false!

Look, Iran is not a very open or transparent state. There’s no denying its flagrant human rights violations. Still, a little perspective is in order. Iran is far more democratic and open than Saudi Arabia – a US “ally” and one of the last absolute monarchies on earth. Iran, which is purportedly out to wipe Israel off the map, actually has a small but surviving and thriving Jewish community. Can the Saudis say the same? In fact, Iran even sets aside seats for one Jew and three Christians in its parliament. Non-Muslims are barely even allowed in Saudi Arabia.

Furthermore, despite the ubiquitous (and disturbing) chants of “Death to America” in the streets, the Iranian population is actually younger, more educated, and more westward-leaning than other states in the region. Why alienate this potentially useful and growing portion of the Iranian populace by pulling out of the nuclear deal and threatening war? Indeed, America’s bellicose rhetoric is pushing Iran into the arms of Russia, a country that is not a natural ally of Iran and has a checkered history with the Islamic Republic. This is bad strategy!

The Iranians also have some genuine grievances. The CIA and M16 fomented a coup in 1953 to overthrow a democratically elected, nationalist prime minister and replaced him with a brutal autocrat. From 1980-88, the US supported Iraq’s invasion of Iran and provided Saddam Hussein with both intelligence and the supplies to produce chemical weapons.

Still not convinced? Well, let’s run through some hard facts and comparisons. Iran spends $11.5 billion on defense – that’s about the cost of a single American aircraft carrier (we have about a dozen, by the way). The US spends more on defense ($700+ billion) than the sum of Iran’s entire GDP ($427 billion). Besides, both the Israelis and Saudis spend more on defense and have more sophisticated militaries than Iran. Each could easily contain the Islamic Republic, or, in a worst case scenario, defeat it in outright war. Heck, Iran still has zero nuclear weapons – and no one ever seems to mention the elephant in the room: Israeli’s illegal (but existent) arsenal of a couple hundred nukes!

If Iran is such an aggressive menace, then why does the Pentagon’s own 2014 report admit that Iran’s military doctrine is essentially paranoid and defensive? These are the sort of facts that don’t make it into the mainstream, alarmist news cycle that perpetuates America’s forever wars.

OK, so Iran utilizes proxy forces to achieve its interests in its own neighborhood. So does the US, and America is thousands of miles away from the Mideast. Besides, the use of proxies by Iran is as much a sign of weakness as of military strength. It’s also exaggerated. For example, Iranian support for the Yemeni Houthi “rebels” is far less substantial than the Saudis would (conveniently) have us believe.

And, though the warmongers running the show in Washington love to declare Iran the world’s “biggest state sponsor of terror,” that label is outdated and utterly incorrect. What about ISIS, an Iranian enemy, or Al Qaeda – also ideologically opposed to Tehran? Fact is, from 1975-2015, Iranian-born terrorists inflicted exactly zero deaths in attacks on US soil. Can we say the same about our Saudi frenemies? (Remember: 15 of the 19 9/11 hijackers were Saudi nationals…ouch.)

Iran is no angel and must be balanced against and carefully observed. Diplomacy can do most of the hard work there. In actuality, the US and Iran have some (gasp!) common interests that a sober strategist might pursue. We both abhor ISIS and other transnational Sunni terror outfits and desire a relatively stable Afghanistan – which borders the Islamic Republic!

While Iran is no military behemoth, you can bet that an attack or invasion of the Islamic Republic would be a costly disaster, for the region and for the already overstretched US military.

The invasion of Iraq kept just about the entire US Army and Marine Corps busy, and fully committed, for nearly 8 years. By now that should be an incontrovertible fact. Here’s the problem: Iran would be even more difficult to invade and occupy. The Islamic Republic is larger, and more populous, mountainous, and fiercely nationalistic than Iraq.

In Iraq and Afghanistan, US military forces (including my units) got too used to uncontested entry to the theaters of war, often flying into Kabul or Kandahar on chartered civilian airliners. In case of a war with Iran that simply won’t work. Iran has invested heavily in Anti-Access/Area Denial (A2AD) weapons which would create standoff and threaten incoming American ships and planes. It’s not that these defenses could not be overcome – they certainly could. Only the casualties would be significant. Iran also utilizes “swarms” of small patrol boats (often loaded with bombs) to overcome more advanced US Navy ships.

Need proof of the potential effectiveness of Iranian defenses? In 2002, the Pentagon put on a wargame, Operation MILLENIUM CHALLENGE, in which US forces practiced an invasion of country remarkably similar to Iran. The retired Marine General acting as the enemy leader, managed to stymie US invasion efforts and sink nearly an entire fleet in the exercise’s first iteration. The response of the military: to replace the general and rerun the game with a weaker enemy force. We military types don’t take well to bad news!

The bottom line is the US military would win a war against Iran. The problem is that the costs and casualties would be enormous and that the occupation would (history being any guide) undoubtedly result in a lengthy, bloody counterinsurgency. America’s All-Volunteer Force (AVF) is simply too small and overburdened to get the job done.

Think of what the US Army, in particular, is already doing: fighting hot wars in Somalia, Niger, Yemen, Syria, Iraq and Afghanistan; balancing against Russia in Eastern Europe; containing North Korea in East Asia; and all the while trying to rest, refit, and retrain after 17 years of ongoing warfare.

Ask yourself, is the risk of war with Iran either reasonably warranted, or worth the risks?

A prudent observer would undoubtedly think not, only we’re not led by judicious foreign policy strategists, now are we?

With all that said, allow me to get personal for a moment. I do not take the (modest) threat from Iran lightly. On January 25, 2007, two of my soldiers – Alex Fuller and Michael Balsley – were gruesomely killed on the streets of East Baghdad by what was most likely an Iranian-supplied explosive device. Sure, I could allow my emotions to rule and call for war – and I doubt anyone would blame me. Only serious analysts and powerful policymakers must make rational calculations, see the world as it is, and conduct tough cost-benefit analyses.

The evidence and the weight of history tell this author that Iran is not a clear-and-present danger to the United States and isn’t worth a preventive war’s cost in blood or treasure. Period.

Of course, the truth is, nothing I or other analysts write is going to influence Trump’s decisions on war or peace. War-making and overall foreign policy decisions are increasingly centralized in an imperial executive branch. The president and his unelected advisers will make their decisions and wield military power however they choose. Congress will neither be consulted nor take a stand. The system is broken.

Still, the time for critical discourse on the real and imagined threats before us is now! Americans must be citizens, assert themselves, and pressure the powerbrokers. Say it loud and clear: no more unnecessary, unwinnable wars!

Iran seems like easy target to the warmongers running the show in Washington. It has no nuclear weapons and is easily vilified. Only remember the last regime changes the US attempted, in Iraq and Libya. How did those turn out?

In Iraq, the US used ground forces to topple a dictator and then spent 15+ years trying to remake a society. The output was catastrophic.

In Libya, President Obama tried a new formula, and ousted a dictator – Gadhafi – without sticking around to rebuild the nation. The results there, too, have been calamitous.

Maybe external regime change itself is the problem. Perhaps, starry-eyed invasion fantasies are usually doomed from the start. Iran, at least, is neither a military powerhouse, nor is it a pushover. It is not a malevolent monster, and presents only the most tangential threat to the homeland.

So, before Americans acquiesce as another president moves our lionized soldiers around like so many pieces on a chessboard, let us ask if the reward is worth the risk. A look at recent history ought to tell the tale well enough: Afghanistan, Iraq, Libya, and Syria – these were all disastrous morasses.

Iran will make Iraq – which this president (rightfully) called “the worst foreign policy decision ever” – look like the “cakewalk” it was billed to be way back in 2003.

Then again, I might be wrong – perhaps the fifth time is the charm.

Are you ready to bet American lives on that?

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The Royal Wedding and the End of Whiteness

Props to CNN’s D. J. Judd, who pointed out a historical irony:

The last Duke of Sussex, named in 1801, advocated for abolishing the slave trade and for religious minorities.

Today, Meghan Markle, a biracial American actress and philanthropist descended from slaves, became the Duchess of Sussex. I think that’s cool.https://t.co/doKzQtWZ8m

— DJ Judd (@juddzeez) May 19, 2018

But on reflection, some of our sense of irony on this issue is misplaced, because observers assume that British aristocracy is a bastion of “whiteness.” (This remark is not aimed at Mr. Judd, who is obviously sophisticated about these issues).

I’m just saying that whiteness itself as a term of racial and class privilege and exclusion has been constructed and has a storied history. Its meaning has changed radically over time.

I pointed out in response to a silly Ann Coulter tweet,

 

Benjamin Franklin was extremely worried about whites being overwhelmed. He said in

“Observations Concerning the Increase of Mankind, Peopling of Countries, etc.” (1751):“Which leads me to add one Remark: That the Number of purely white People in the World is proportionably very small. All Africa is black or tawny. Asia chiefly tawny. America (exclusive of the new Comers) wholly so. And in Europe, the Spaniards, Italians, French, Russians and Swedes, are generally of what we call a swarthy Complexion; as are the Germans also, the Saxons only excepted, who with the English, make the principal Body of White People on the Face of the Earth. I could wish their Numbers were increased.”

So get this. Some of the eighteenth century founding fathers only thought English and Danish people were white. Even Swedes and Germans were “swarthy.” French certainly were. So Franklin would not have considered me white, since my family is French and German. We’re swarthy. We do have some Scottish, but if the Swedish are swarthy I suspect he thought the Scottish were, too. Since Coulter is in part Irish and German, Ben Franklin wouldn’t have accepted her as white, either, and was worried about the German part of her family acting like barbarians and interfering in elections. You can only imagine what he would have thought of German grifters like Donald Trump’s grandfather.

That identification of Englishness with whiteness in the American racial imaginary is nowhere more evident than racialist imaginings of the British royal family. Though note that they were substantially German, of the House of Saxe-Coburg and Gotha, so Ben Franklin would have looked down on them. And there was a long tradition in medieval Britain of yeomen looking down on the royal family, whom they saw as Norman invaders, complaining about the Norman Yoke, a trope that fed into the American Revolution, as historian Christopher Hill argued.

Of course, any notion of racial purity is a myth. The gene pool gets all mixed up over time. Some 5-10% of self-identified “whites” in the American deep south have recent African ancestors, and over time all “whites” will.

Even further back, Europe was mostly empty of people during the last Ice Age, which only ended some 12,000 years ago, and was repopulated in part from Africa and Syria. Genetic history finds bronze age Spanish and Britons to have been black, and they were the ancestors of contemporary Europeans. (Northern latitudes select for fair skin over thousands of years because embryos in the mother’s womb need enough UV rays to make vitamin D, and it is hard for those rays to get through dark skin). All this is not to mention that European royal houses have extensively intermarried and are therefore international.

I once observed,

But “whiteness” is an illusion. Because the crowned heads of Europe intermarried over centuries and because Spanish nobility was in the mix, and because in turn Spaniards and other southwestern Europeans are up to 20% North African in heritage  as well as having substantial genetic endowments from Jews and various other Muslim peoples, not to mention Phoenicians and sub-saharan Africans– actually all European royal families have been mixed-race for a very long time. In fact, some genealogists allege that Prince Harry is descended from the Prophet Muhammad the residual category of “white”. . . was used [in the early 20th century) by working class Catholics in a desperate bid to distinguish themselves from Latinos and African-Americans. But really. Why are Italian-Americans from Sicily “white” in America, but people from Latin America whose ancestors lived in Catalonia are “brown”? In the medieval era, for a while, both Catalonia and Sicily were in the same country, ruled by the crown of Aragon!

The popular press in America is confused about such issues because many writers do not realize that there is no such thing as race in the 19th century biological sense. You have 2 parents, 4 grandparents, 16 great-grandparents, and by the time you get back to 1400 you have a million ancestors. For someone who hails from Europe, how likely is it that none of them were Arabs and Berbers from southern Spain who had been forced to convert and then married Catholics? Europe’s population in 1400 was only 78 million or so and [each modern is] descended from a million of them. And Arabs in southern Spain were in turn intermarried with Berbers and Africans. After 50 generations (a generation is 24 years), most of the world’s genes get shared around. Everyone in the Mediterranean basin shares common ancestors from only a few thousand years ago, including Tunisians and Egyptians and Spanish and Italians. The claim about Prince Harry and Muhammad is a little bit of a trick, since most contemporary Europeans are probably descended from Muhammad.

Whiteness is not solely a Western phenomenon, but where it occurs elsewhere it always also has a history and social context. In India conquerors tended to bring heavy horse cavalry through passes in the Hindu Kush mountain ranges that form a border with Afghanistan. Horses did not flourish in tropical India and therefore the invaders had an advantage. Whether Huns, or later Muslim Turks and Iranians, the invaders formed a privileged elite and their fair skin therefore was often prized. In subsaharan African kingdoms, in contrast, blackness was celebrated. But “whiteness” was never about skin color. Most northern Europeans are sort of pink, and our primary exemplar of white privilege today, the US president, is orange. Whiteness is about a conception of race based on the imaginary characteristics thought to go along with an idealized complexion.

What I fondly hope is that the whole American conception of whiteness in the 20th century, with its attempt permanently to divide the working class and artificially to denigrate people of African and Hispanic antecedents while artificially elevating Irish-Americans and Italian-Americans (not to mention German-Americans and English-Americans) as part of a supposedly superior “race,” is falling apart among the millennials. It won’t happen over night, but we might be seeing the beginning of its end. And that Harry and Meghan are playing an important symbolic role in furthering that process.

We’re human beings, not races, and the genetic differences among human beings are too few and too inconstant to account virtually for anything at all.

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We the Corporations (Audio and Transcript)

In this week’s episode of “Scheer Intelligence,” host and Truthdig Editor in Chief Robert Scheer welcomes Adam Winkler, a professor of constitutional law at UCLA’s School of Law and the author of “We the Corporations: How American Businesses Won Their Civil Rights.” His new book tells the 200-year history leading up to the Citizens United Supreme Court case, which gave corporations a controversial right to political speech.

In their conversation, Winkler tells Scheer that corporations have been highly successful in obtaining rights in part because they have been able to hire very capable and creative lawyers.

“Corporations have always been able to hire those good lawyers, and file risky lawsuits that even if they have a strong chance they’re going to lose, they may be worth part of the cost of doing business, if you will, for corporations,” Winkler says. “And so they’ve been able to finance litigation over and over and over again, and one of the surprising things that really comes out of that is that as a result, corporations have often been innovators and first movers in American constitutional law, often helping to breathe life into certain constitutional provisions that only later would be read broadly by the court to protect women and minorities and you and me.”

Winkler adds that a constitutional amendment to ban corporate rights would be a mistake because corporations do need some constitutional protections, including the right to due process and free speech.

“Corporations need basic protections for their property rights. Otherwise, the government could come and seize a corporation’s assets without paying just compensation,” Winkler explains. “We want corporations to have due process rights, so Apple can fight against the federal government and the FBI when it says we want you to open up this iPhone. Apple wouldn’t do that if it didn’t have due process rights. And, of course, we want corporations like The New York Times and CNN to have, even though they’re corporations, to have some free speech rights. Otherwise, they could be censored. So I think we need to have a nuanced approach to the rights of corporations. They need some constitutional protections, but that doesn’t mean they need all the same constitutional protections as you and me.”

And Winkler and Scheer discuss the use of the 14th Amendment to protect corporations—an amendment created to protect freed slaves.

“The obscenity that your book describes is that this court system, which is this branch of government which we somehow have come to think of as the saving grace of democracy, actually destroyed the meaning of this amendment,” Scheer says. “Really, now, you can’t put too fine a point on it. Because the idea that this amendment was used primarily for the first, what, 70 or 80 years or longer to benefit corporations while keeping black people in bondage—slavery, or segregation, certainly—while keeping women in an indentured servant’s status, as objects. What your book details, you don’t put that harsh a point on it, it’s not a rhetorical book, but the fact is, it’s the subversion of the 14th Amendment, by the corporations, by the rich.”

“That’s right,” Winkler says. “It’s one of the most remarkable stories, I think, in the history of the Supreme Court. The 14th Amendment, adopted after the Civil War to protect the rights of the newly freed slaves.”

Listen to the interview in the player above and read the transcript below. Find past episodes of “Scheer Intelligence” here.

—Posted by Eric Ortiz

Full transcript:

Robert Scheer: Hi, this is Robert Scheer with another edition of Scheer Intelligence. I know it sounds arrogant, but the intelligence comes from my guests, and not from me. I’m sort of like the poor man’s Central Intelligence Agency here. And my guest today is Adam Winkler, a well-known constitutional law professor at UCLA. And he’s written two books, one of which created a great stir, on the battle over the right to bear arms in America. And the most current one, and that one took sort of an agnostic position on the Second Amendment. And I was just complimenting him on how educational, in the best sense, his books are. Because you kind of don’t know quite where they’re going, but you get familiar with the history and the documents. And so it’s, in the best sense, a learning or a teaching experience. And that’s true of his second book, in particular; very controversial subject, after the Citizens United decision, the whole case of money and elections, particularly corporate money. And his second book is called We the Corporations: How American Businesses Won Their Civil Rights. So a lot of people didn’t know they had civil rights. So why don’t you kind of sketch out the argument of your book?

Adam Winkler: I started writing the book after the Citizens United case, in 2010. And when the Supreme Court said that corporations have the same rights as individuals to spend their money to influence elections, it sort of raised the question: how did corporations come to win our most fundamental rights? And so I wanted to write a book that sort of looked at that history. We know the stories of, say, the Civil Rights Movement, or how women won equal rights, as being sort of central stories in the narrative of America. But there’s also been a story about how corporations have won constitutional rights, and corporations for 200 years, like women and minorities, have been fighting for equal rights. Although, unlike racial minorities, they didn’t risk their lives to do it; there’s no moral equivalency between these civil rights movements, if you will. But corporations have been fighting in the Supreme Court to win the rights of people. And we think of the Supreme Court as a bulwark for the protection of minority rights, but the truth is, if you look back through American history, the Supreme Court’s mostly exercised its power to help out the most wealthy and powerful interests in America. And the corporate rights movement is a really very interesting, but overlooked example of this phenomenon.

RS: If corporations are legal persons, that doesn’t mean we can’t have campaign finance reform; it doesn’t mean–if they’re legal persons, they can’t then spend any more money than I do, right, in supporting a specific candidate. We can also have campaign finance reform laws, public funding of campaigns, and so forth. So this really doesn’t rule any of that out.

AW: No, that’s right. Corporate personhood is a really misunderstood idea. I mean, it’s actually a very long and established principle in the law, and in fact when, at law school, when we teach our students basic business law, one of the first lessons they learn is that corporations are people. And that’s not to make an existential claim that corporations are just like you and me. But nonetheless, corporations have their own independent identity in the eyes of the law. That is to say, they can be held responsible; they have their own legal obligations. But they also have their own legal rights, like the right of property. And that’s basic to the idea of a corporation. In corporate law, though, we say that because of corporate personhood a corporation is a separate, legal person from the people who make up the corporation. That’s why if you slip and fall at Starbucks, you have to sue the corporation, Starbucks, not the individual shareholders. The shareholders and the corporation are separate legal persons. What’s become more complicated is in recent years, the Supreme Court’s used this idea to say that corporations have basic constitutional protections equivalent to those of individuals. And that’s, I think, where the court has gone awry; it’s taken that corporate personhood idea, in many ways, in the wrong direction.

RS: The Constitution doesn’t mention corporations, right?

AW: That’s right.

RS: And so, and you actually say, I think it’s on page 52, I thought it was an interesting statement, you said, “Although the Framers had not set out to protect corporations”–and you were describing, I think, Binney and the first legal case in which they were making a counterargument. And the other thing is that the Constitution sort of reeks with the notion from the Declaration of Independence that we’re endowed by our creators with certain inalienable rights. And I don’t think you’re making the case that the Founders thought corporations had inalienable rights; in fact, corporations existed by virtue of government power, right? It wasn’t the creator. It wasn’t the natural order of things. It was the King of England said, you can be a corporation, and they put down very specific regulations for what they wanted that corporation to do, how it collected its money, and so forth. And while the notion of the corporation has changed, this could be a two-edged sword. Because if the corporation’s model of the Founders is one of government having to grant it, that means government could put down all sorts of restrictions on corporate behavior, couldn’t it?

AW: Yes, that’s right. And this has been a big issue for, for instance, for originalist justices on the Supreme Court, like Antonin Scalia, who argued that we should interpret the Constitution solely by lights of the original understanding of that document when it was adopted. And it’s clear that the Framers were never thinking about protecting corporations when they wrote the Constitution, but nonetheless, the Supreme Court has over the course of 200 years broadly read the Constitution apart from the original understanding to extend rights to corporations. And they’ve been doing it for a long, long time. And in fact, the first Supreme Court case to extend constitutional protections to corporations was decided in 1809–that’s a half century before the first Supreme Court cases on the rights of African Americans and women. And by the way, African Americans and women lost their cases, unlike the corporation in the first corporate rights case. So the Framers weren’t thinking about corporations. But the Supreme Court is often accused of sort of a living Constitution, reading the Constitution in a way that’s evolutionary to accept new people, like LGBT people or black people or women. But the truth is, is the Court’s generally been reading the Constitution very broadly as a living document to protect business corporations more than anyone else.

RS: Privilege always operated in this country; wealth always had power. And that has to do with the writing of the Constitution, but it also had to do with interpreting the Constitution. Because as you point out in your book, and it’s fascinating history in this respect, that first decision about banking and so forth–and yes, it preceded not only Dred Scott, but Dred Scott turned against black people–but in that decision Binney, a guy who, what did he, he started the Hasty Pudding club at Harvard and everything, you know? Well, he came from privilege, and he was living on a block, I believe, with Washington and, what, Madison or Jefferson–

AW: Hamilton.

RS: Hamilton. And so here you had, very early on, the people of wealth, the corporations that existed, that had the charters, also could hire the most effective lawyers. And they could rig the game. And so constitutional interpretation has been rigged to people of privilege, as generally the whole legal system, from day one. And this is really what the Beards were calling attention to, that these fellows not only had wigs on, but they had slaves, they had property, they had interests, and so forth. And they took care of their interests.

AW: And they were stockholders. Many of them were owners of, held shares in stock of the sort of emerging stock corporations of the early 1800s.

RS: Yeah, you point out Washington, I think, and even Jefferson and so forth, right?

AW: Yeah, they were stockholders. And so it’s not surprising that they protected their interests. And you really point out an important theme that I found in the book, in that one of the reasons why corporations have been so successful in winning constitutional protections is that they’ve been able to hire the best, most creative lawyers from the get-go. When you think about, great lawyers have always played a starring role in the civil rights movements; Thurgood Marshall, or Ruth Bader Ginsburg. But those organizations and movements have generally been underfunded, not been able to bring all the cases they want, not been able to hire always the best lawyers; sometimes they’ve had great lawyers, don’t get me wrong. But corporations have always been able to hire those good lawyers, and file risky lawsuits that even if they have a strong chance they’re going to lose, they may be worth part of the cost of doing business, if you will, for corporations. And so they’ve been able to finance litigation over and over and over again, and one of the surprising things that really comes out of that is that as a result, corporations have often been innovators and first movers in American constitutional law, often helping to breathe life into certain constitutional provisions that only later would be read broadly by the court to protect women and minorities and you and me.

RS: I mean, we have to face the fact that our Constitution–and this really confounds the originalists–was a deeply flawed document. I happen to argue it’s also the most interesting limitation on government that the world has ever seen; I respect the Constitution very much, I don’t think any other government has this clear definition of the ability of power to corrupt, and the need to restrain power, and so forth. So I’m a great admirer of it. But the strict interpreters of it, the so-called conservatives on the court, really are strictly interpreting a racist, misogynist document that protected the richest people in this society. And I think your discussion at the beginning of this is quite clear. However, even there, in the document they produced, they did not–and maybe you could discuss that–they did not do what the court now did with Citizens United. They did not clearly extend to corporations the protections of the Bill of Rights, or generally the Constitution; they must have been a little bit wary of doing that. Because after all, corporations were suspect. There were plenty of people living here in the colonies who hated–after all, when they threw the tea out, the Boston Tea Party was against a corporation, right?

AW: That’s right. We think about the Boston Tea Party as a protest against the British government, but the reason why the British government had affected, legislated on the tea tax was as a bailout for the most powerful corporation in the world at the time, the East India Company, which was responsible for importing tea into the colonies. And as part of this massive bailout, the East India Company won the right for the very first time to sell tea in the colonies without using American middlemen. And so what the Boston Tea Party was, was a revolt of people who were upset that American merchants and businessmen were being cut out of the tea trade. And they targeted that tea, that boat, that night because they wanted to throw over the tea of the East India Company. And so the corporation was something that the Framers were actually pretty worried about, at least in, at the time of the Revolution. But something interesting happened right after the Revolution, which is that right after the Constitution was adopted in the late 1780s, early 1790s, you had a huge growth in the number of corporations in America. They started to be used for everything, and by the 1800s there were over 300 corporations in the 13 colonies, a growth, an expansion of corporations that was really unprecedented.

RS: I personally think a lot of the outrage over Citizens United is a bit exaggerated. Because the fact is—I mean, for example, in Obama’s campaign against John McCain we did have a public finance alternative. People have ignored that fact. And Barack Obama decided not to use it. Right? McCain was using it.

AW: That’s right.

RS: So for all the people, and particularly democrats, railing against Citizens United, the fact is there are mechanisms in place now to have campaign finance reform, if you choose to support them and use them, right?

AW: Yes.

RS: There’s nothing in Citizens United that says you can’t have public funding of a presidential campaign.

AW: No, that’s right, although I will say that the Supreme Court has enacted certain doctrines, or has ruled in certain ways in recent cases making in harder to have public financing systems. And so a lot of clean money advocates who have been promoting a vision of public financing have found that the Supreme Court has been pretty hostile. And so you can still have a public financing regime, but the Supreme Court, in Citizens United and other decisions, has made clear that independent people who want to make expenditures and take out ads favoring a candidate, that doesn’t count against a candidate’s public funds, or doesn’t count as a contribution to their campaign. And that’s really one of the big issues about Citizens United. We think about it as really empowering corporations to spend money, and it does do that. But it’s also empowered individuals to spend money, and most of the money that’s come into the political system, the dark money that’s come in in the wake of Citizens United, hasn’t been corporate money. It’s been individual money, it’s been a little bit of corporate money, a little bit of union money. I don’t know whether in the future we’re going to see much more corporate money; I wouldn’t be surprised if we did. One of the things I find in my book is that especially when it comes to political activity, corporations are often not first movers. They like to wait ’til progressives have sort of set the stage. And indeed, it was unions that devised the PACs that corporations would later use to become extremely powerful.

RS: And the real problem is transparency. And a corporation, by definition, has to worry—yes, OK, we can argue about whether it’s a person or not. But the good thing is, if they are out there, they have to worry about the consequence of their backing something, OK. And we see that; I mean, you know, any big corporation, they shift one way or they shift another way, they’re going to lose customers, they’re going to get heat and so forth. And so it seems to me the real issue is, is the money transparent, is it obvious that it’s going into a campaign, more so than where is it coming from.

AW: Well, I think transparency can be overrated in the sense that, I mean, transparency, if we see that Sheldon Adelson’s spending $90 million to elect Mitt Romney, yeah, we know that, and I guess that’s, it’s good to know it, better than not knowing it. But the problem with someone getting $90 million from one person is that that person’s going to have an outsized influence on that elected official.

RS: Agreed. And I personally would like to ban all of it. But that’s not, my point is only on this corporate-as-a-person thing. Because if his casino is backing a candidate, then there are people who might not want to go to his casino, OK? If Apple, you know, which has I think an enlightened position on gay issues and so forth—they have to take some lumps. I do stress transparency, because at least in a company case, if people knew not only what Sheldon Adelson was doing but how they can get back at him by not going to his businesses, then at least you have a restraint on this use of money, I think.

AW: No, I think that’s very possible, and I think it’s part of what we’re all looking for in light of the Supreme Court’s strict limits on what we can do in the campaign finance area, is to try to find other ways that we can try to make more transparent and make our system more democratic and more open. One of the things that I find is that, I found that there was, a hundred years ago, courts dealt with the issue of whether corporations had a constitutional right to spend their money to influence elections. A series of cases arose out of the Prohibition era, as in the run-up to Prohibition, brewing companies wanted to take out ads and whatnot to influence those elections so that they wouldn’t ban alcohol. And they chafed against these early campaign-finance laws that restricted corporate money in elections, and they went to court and challenged them as a violation of their constitutional rights, a hundred years before Citizens United. The courts back then, though, said that corporations had property rights, not liberty rights. They didn’t have the right to personal freedom and democratic participation, and the courts 100 years ago universally upheld those campaign finance laws. That line between sort of property rights and liberty rights seems to be one that the Supreme Court has lost sight of.

RS: There are certain liberty rights—I hate to be challenging the professor here–that we do accept that corporations have. Because they do require maybe a degree of privacy, and so forth, no?

AW: One of the things I definitely concluded after writing the book—the book is not a work of advocacy one way or the other, it’s a history book looking backwards. But one of the things that I sort of drew out of the book is that the corporations need some constitutional protections. As you know, there’s a constitutional movement to amend the Constitution, to add a 28th amendment that would outlaw corporate rights, that would say corporations are not people, supported by a lot of big organizations–Move to Amend, Public Citizen, and others. I think that constitutional amendment would be a mistake, although I understand its motivations and desire to scale back corporate power. Corporations need basic protections for their property rights, otherwise the government could come and seize a corporation’s assets without paying just compensation. We want corporations to have due process rights, so Apple can fight against the federal government and the FBI when it says, we want you to open up this iPhone. Apple wouldn’t do that if it didn’t have due process rights. And of course we want corporations like The New York Times and CNN to have, even though they’re corporations, to have some free speech rights, otherwise they could be censored. So I think we need to have a nuanced approach to the rights of corporations. They need some constitutional protections, but that doesn’t mean they need all the same constitutional protections as you and me.

RS: We’re going to take a break right now, and I want to get back to what room we have left to make our politics accountable and not have money drown everything. So I want to get constructive here. Be right back. [omission for station break] And so let me ask you, as a constitutional scholar, how significant is Citizens United? How much room is there now for making this political system more accountable?

AW: I think that Citizens United is a very important case, not just for freeing up corporations, but for making it a little bit harder to stop people from making independent ads. The Supreme Court in Citizens United also emphasized that if an individual or a corporation wants to spend money on an election ad, and it’s not coordinated in any way with the candidate, then there’s no potential corruption that could come from that. I don’t think that’s right. We should see Citizens United, though, as part of a larger pattern. And the Supreme Court under Chief Justice John Roberts has invalidated quite a number of campaign finance laws and made it much harder to achieve that kind of transparency that many of us are seeking. And new limits, and in fact there’s a case that may be going up to the Supreme Court that was just decided this week by the Ninth Circuit, the federal court here in California and the western states, that upheld some campaign contribution limits, and over a vigorous dissent by one of the republican appointed justices. And there is at least some speculation among election-law scholars that the Supreme Court may take this case next year and declare that all contribution limits are unconstitutional. Which would make it that much harder to have accountability and transparency, and restrict the flow of money to our elected officials.

RS: What can be done? I mean, one perspective would be, OK, let’s limit the power of government. For example, let’s just take the whole area of foreign policy. Our Founders, and you’re a constitutional scholar, it seems to me were in pretty much agreement that we should not get extended too much abroad, foreign entanglements and so forth, because then the individual citizens would lose accountability; they wouldn’t know what’s going on, they could be easily lied to. And that was their sort of view of what happened to England and Rome and everyone else, you know. So we wanted to keep the dimensions. You could also say, look, if we really have a market system, let government stick with making the product safe and accuracy and so forth. And you know, and that means also not bailing out the banks. [Laughs] Not having the Fed as a backup. There’s a kind of more pure libertarian position that argues all that; get back to Adam Smith, keep the scale low, prevent mergers, anti-trusts and so forth, and not have government micromanage. And isn’t that somewhat close to what the Founders really had in mind?

AW: Well, I will say, I think sometimes we can often fail to see, history can blind us to the ways in which the Founders did regulate business and did regulate trade. And they didn’t have the kind of big bureaucracies that we have today; the economy was so much different back then. But there’s been a lot of really interesting, great, historical work about the extent to which, even in the colonial era and the early state era and the early 1800s, how often government did regulate for the public’s safety and welfare. And that’s partly why corporations were seeking constitutional rights from our earliest days. The reason why corporations want these rights is because they can fight back against regulation of business. They can strike down a law that’s designed to regulate or restrict what businesses do in the interest of investors or consumers or the public at large. And when they lose in the legislature, which corporations don’t do that often, they can use these rights to go to court to try to overturn those laws. And from the earliest days of America, corporations are really flooding the courts with these constitutional claims, trying to get out of regulation and to avoid efforts by we the people to regulate business. So I do think, yeah, there’s no doubt the framers had a more libertarian understanding of the economy than we have, to be sure. But from the early days, there were efforts to regulate businesses and try to soften some of those hard edges. And corporations have always pushed back by using the Constitution.

RS: OK, but with all due respect, I don’t think you’re setting it up—this is not the only dichotomy. Another view is, in fact–and the banking meltdown, what happened in the Great Recession is a very good example–regulation in the sense of preventing crime, clearly, any society has to do that, right? So for instance, of giving people fraudulent loans; of lying to them; of distorting the situation; of colluding to prevent their getting information, or to game the system, or to control the interest rates, Libor, or so forth—all of the stuff that’s come out–these are crimes. And basically, one could argue that in the name of deregulation, all the banks did was prevent policing of crime. Something poor people can’t do; if they steal your iPhone, they’re going to go to jail, but you know if the banks can change the law so it’s not a crime to lie to people about their mortgage application and the interest rate—and to rig the interest rate and so forth—what you’re really talking about is not deregulation, you’re talking about effectively using the government to conceal your theft of property, or crime and so forth. So I don’t think the thing is put right. And in your book, I learned that even the King of England, when he did grant the charter to these corporations, demanded accountability and transparency. And you actually argue in your book that these original corporations were kind of a model of transparent governance; there had to be board meetings, there had to be public meetings, there had to be information and so forth. And the scale was going to be quite small. So maybe you could talk about that. Because you know, the argument that’s always put is, either give business a blank check, which then, what, they’re licensed to steal and create monopolies and prevent competition; or, in fact, treat them the same way you treat your poorer individuals, hold them responsible when they steal and they take advantage and when they distort, right?

AW: That’s right. And in some ways, our own Constitution draws its heritage from the early colonial corporate charters of the early colonies. That were, like I said, set up as corporations, as business corporations—

RS: But accountable.

AW: They were accountable. They had investors, the King wanted to oversee them and did oversee them pretty closely. But they were set up as corporations; as corporations, they had a charter from the government, a document, like you said earlier, that had to be granted by the government so they could operate. And those charters were heavily detailed in the way they regulated business. As you said, they really, that was the way in which businesses were regulated, through charters. And these charters specified who could hold office, what the officeholders’ rights were, what the limits of the officeholders’ powers were, what the rights were of the members to come together and to try to enact bylaws. All those things that were part of the corporate organization came to really influence the Founders’ ideas of government. And by the time they’re writing the Constitution, they’re not thinking about these in corporate terms, but they’re still thinking about, government should have a written charter, a written document that limits what officeholders can do, and that provides rights for people to participate in lawmaking, and recognizes their individual rights. So you’re absolutely right, there’s ways in which the corporation was influencing democracy from the very earliest days, and influenced sort of the shape of the Constitution.

RS: Much of what’s called deregulation, as I say, is a way of obscuring what’s going on. You know, so you say, we’ll get away with all of the New Deal banking regulations—well, those were just transparency regulations; what are you doing, who are you doing it to, what information are you sharing. Certainly the freedom of corporations to game the interest rate, and the Libor and all that sort of thing–that is just simply a license to steal.

AW: That’s right. It’s so funny, we think about deregulation often as about taking out of law, right, or rescinding legal rules that are burdens on business. But in many times, those burdens are really designed to help us, and things like disclosure laws. And if you get deregulation and exemptions from disclosure laws, you’re really going to hurt the individuals who rely on those disclosure laws. And this is part of the reason why corporations get those constitutional rights and seek to assert them. So for instance, in recent years we’ve seen corporations use the First Amendment to fight back against laws requiring graphic cigarette warnings on tobacco, on cigarette labels. We’ve seen corporations fight against rules requiring disclosure of the use of conflict minerals. And indeed, by one study, 50 percent of all First Amendment cases brought today are brought by corporations and businesses and trade associations seeking to fight back against basic kinds of laws that are requiring them to disclose information for consumers. So it really does show you how this effort of corporations to both manipulate the government so it serves businesses, and also use the Constitution to disempower government from imposing various kinds of obligations on corporations, very actively these days.

RS: The original creators of our Constitution had a very strong sense of states’ rights. They said all these powers not specifically given to the federal government are reserved to the states. And what happened after the writing—so after the original document, rich, powerful people in this country hired the smartest lawyers from the best schools, and got them to subvert the intent of the Founders. Because certainly—and take the case of Texas entering the union as a very good example. When Texas entered the union, their main concern of the people in Texas was to restrain the role of the banks, because the banks were associated with swindling people out of their claims, and so forth. They didn’t even want banks to give mortgages and so forth. Over the years, and that’s why Texas was hurt less in the banking meltdown than California, because they still had some tradition. What happened was through the courts and the Congress, the rights of the states to regulate the banks and other corporations was very much limited. Taken away. In fact, the early decisions you cite had to do with controlling state—first decision, the united bank and so forth–

AW: Yeah, Bank of the United States v. Deveaux, was one of the first Supreme Court cases.

RS: Yeah, that case was taking away the power of the state. And so the originalists are full of it. They’re lying when they say, we care about what’s in that Constitution. Because the people who wrote the Constitution, if there was anything in their mind, was not to cede too much power to this new federal entity that they were oversuspicious of. And so what you had after the writing of this Constitution is rich and powerful people getting into the courts and, really, subverting this constitutional principle. And Citizens United is kind of the culmination of that.

AW: Yeah, I think that’s right. I think that’s the way to think about it. Citizens United is the case that sort of shows, sort of took a spotlight and has shone it on this issue, really highlighted the question of corporate power in the courts, and how corporations have used the Constitution to expand their influence on—

RS: No, used the courts. And distorted the Constitution.

AW: Yeah. Well, yeah, that’s right. Used the courts and distorted the Constitution, I think that’s right. And that’s why, I guess, on the cover of my book there’s a balled-up Constitution, you know, showing what can become of the Constitution when in the hands of the wealthiest and powerful interests of corporations.

RS: So, one final point, because we really haven’t talked about the 14th Amendment. And the thing that is sort of enraging about your book–because I mean, I just want to read the 14th Amendment, Section 1: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” And the obscenity that your book describes is that this court system, which is this branch of government which we somehow have come to think of as the saving grace of democracy, actually destroyed the meaning of this amendment. Really, now, you can’t put too fine a point on it. Because the idea that this amendment was used primarily for the first, what, 70 or 80 years or longer to benefit corporations while keeping black people in bondage—slavery, or segregation, certainly—while keeping women in an indentured servant’s status, as objects. What your book details, you don’t put that harsh a point on it, it’s not a rhetorical book, but the fact is it’s the subversion of the 14th Amendment, by the corporations, by the rich.

AW: That’s right. It’s one of the most remarkable stories, I think, in the history of the Supreme Court. The 14th Amendment, adopted after the Civil War to protect the rights of the newly freed slaves—

RS: By radicals. Written by radicals. Populists. Yeah.

AW: Written by radicals, progressive radicals, right. And yet about a little less than 15 years after the 14th Amendment was ratified in 1868, the Southern Pacific Railroad company, a powerful, wealthy corporation here on the West Coast, launched a remarkable series of what its lawyers called “test cases,” seeking to win a Supreme Court ruling giving them rights under the 14th Amendment. And what was so remarkable was that the Southern Pacific Railroad hired a lawyer by the name of Roscoe Conkling, who was an illustrious politician at the time, and had been one of the drafters of the 14th Amendment. And Conkling went to the Supreme Court and said that the 14th Amendment was drafted specifically to protect corporations, too, and even produced a musty old journal that he claimed supported his story. It turns out that historians have gone back and realized that Roscoe Conkling had just flat-out lied to the justices of the Supreme Court. Nonetheless, the Supreme Court a few years later adopted Roscoe Conkling’s theory of the 14th Amendment, said corporations were protected. And in about the first half-century of the 14th Amendment, the Supreme Court heard only 28 cases on the rights of African Americans, mostly ruling against them. And during that same time, the court heard 312 cases on the rights of business corporations, often ruling in favor of those businesses.

RS: Well, that’s going to have to do it for this interview with Adam Winkler, a professor of constitutional law at UCLA’s School of Law, and the author of a really important book on Citizens United, basically, but the roots going back to our original Constitution, “We the Corporations: How American Businesses Won Their Civil Rights.” The producers for today’s show are Joshua Scheer and Rebecca Mooney. Kat Yore and Mario Diaz here at KCRW are the engineers. See you next week.

Truthdig has launched a reader-funded project—its first ever—to document the Poor People’s Campaign. Please help us by making a donation.

We the Corporations

In this week’s episode of “Scheer Intelligence,” host and Truthdig Editor in Chief Robert Scheer welcomes Adam Winkler, a professor of constitutional law at UCLA’s School of Law and the author of “We the Corporations: How American Businesses Won Their Civil Rights.” His new book tells the 200-year history leading up to the Citizens United Supreme Court case, which gave corporations a controversial right to political speech.

In their conversation, Winkler tells Scheer that corporations have been highly successful in obtaining rights in part because they have been able to hire very capable and creative lawyers.

“Corporations have always been able to hire those good lawyers, and file risky lawsuits that even if they have a strong chance they’re going to lose, they may be worth part of the cost of doing business, if you will, for corporations,” Winkler says. “And so they’ve been able to finance litigation over and over and over again, and one of the surprising things that really comes out of that is that as a result, corporations have often been innovators and first movers in American constitutional law, often helping to breathe life into certain constitutional provisions that only later would be read broadly by the court to protect women and minorities and you and me.”

Winkler adds that a constitutional amendment to ban corporate rights would be a mistake because corporations do need some constitutional protections, including the right to due process and free speech.

“Corporations need basic protections for their property rights. Otherwise, the government could come and seize a corporation’s assets without paying just compensation,” Winkler explains. “We want corporations to have due process rights, so Apple can fight against the federal government and the FBI when it says we want you to open up this iPhone. Apple wouldn’t do that if it didn’t have due process rights. And, of course, we want corporations like The New York Times and CNN to have, even though they’re corporations, to have some free speech rights. Otherwise, they could be censored. So I think we need to have a nuanced approach to the rights of corporations. They need some constitutional protections, but that doesn’t mean they need all the same constitutional protections as you and me.”

And Winkler and Scheer discuss the use of the 14th Amendment to protect corporations—an amendment created to protect freed slaves.

“The obscenity that your book describes is that this court system, which is this branch of government which we somehow have come to think of as the saving grace of democracy, actually destroyed the meaning of this amendment,” Scheer says. “Really, now, you can’t put too fine a point on it. Because the idea that this amendment was used primarily for the first, what, 70 or 80 years or longer to benefit corporations while keeping black people in bondage—slavery, or segregation, certainly—while keeping women in an indentured servant’s status, as objects. What your book details, you don’t put that harsh a point on it, it’s not a rhetorical book, but the fact is, it’s the subversion of the 14th Amendment, by the corporations, by the rich.”

“That’s right,” Winkler says. “It’s one of the most remarkable stories, I think, in the history of the Supreme Court. The 14th Amendment, adopted after the Civil War to protect the rights of the newly freed slaves.”

Listen to the interview in the player above and read the transcript below. Find past episodes of “Scheer Intelligence” here.

—Posted by Eric Ortiz

Full transcript:

RS: Hi, this is Robert Scheer with another edition of Scheer Intelligence. I know it sounds arrogant, but the intelligence comes from my guests, and not from me. I’m sort of like the poor man’s Central Intelligence Agency here. And my guest today is Adam Winkler, a well-known constitutional law professor at UCLA. And he’s written two books, one of which created a great stir, on the battle over the right to bear arms in America. And the most current one, and that one took sort of an agnostic position on the Second Amendment. And I was just complimenting him on how educational, in the best sense, his books are. Because you kind of don’t know quite where they’re going, but you get familiar with the history and the documents. And so it’s, in the best sense, a learning or a teaching experience. And that’s true of his second book, in particular; very controversial subject, after the Citizens United decision, the whole case of money and elections, particularly corporate money. And his second book is called We the Corporations: How American Businesses Won Their Civil Rights. So a lot of people didn’t know they had civil rights. So why don’t you kind of sketch out the argument of your book?

AW: I started writing the book after the Citizens United case, in 2010. And when the Supreme Court said that corporations have the same rights as individuals to spend their money to influence elections, it sort of raised the question: how did corporations come to win our most fundamental rights? And so I wanted to write a book that sort of looked at that history. We know the stories of, say, the Civil Rights Movement, or how women won equal rights, as being sort of central stories in the narrative of America. But there’s also been a story about how corporations have won constitutional rights, and corporations for 200 years, like women and minorities, have been fighting for equal rights. Although, unlike racial minorities, they didn’t risk their lives to do it; there’s no moral equivalency between these civil rights movements, if you will. But corporations have been fighting in the Supreme Court to win the rights of people. And we think of the Supreme Court as a bulwark for the protection of minority rights, but the truth is, if you look back through American history, the Supreme Court’s mostly exercised its power to help out the most wealthy and powerful interests in America. And the corporate rights movement is a really very interesting, but overlooked example of this phenomenon.

RS: If corporations are legal persons, that doesn’t mean we can’t have campaign finance reform; it doesn’t mean–if they’re legal persons, they can’t then spend any more money than I do, right, in supporting a specific candidate. We can also have campaign finance reform laws, public funding of campaigns, and so forth. So this really doesn’t rule any of that out.

AW: No, that’s right. Corporate personhood is a really misunderstood idea. I mean, it’s actually a very long and established principle in the law, and in fact when, at law school, when we teach our students basic business law, one of the first lessons they learn is that corporations are people. And that’s not to make an existential claim that corporations are just like you and me. But nonetheless, corporations have their own independent identity in the eyes of the law. That is to say, they can be held responsible; they have their own legal obligations. But they also have their own legal rights, like the right of property. And that’s basic to the idea of a corporation. In corporate law, though, we say that because of corporate personhood a corporation is a separate, legal person from the people who make up the corporation. That’s why if you slip and fall at Starbucks, you have to sue the corporation, Starbucks, not the individual shareholders. The shareholders and the corporation are separate legal persons. What’s become more complicated is in recent years, the Supreme Court’s used this idea to say that corporations have basic constitutional protections equivalent to those of individuals. And that’s, I think, where the court has gone awry; it’s taken that corporate personhood idea, in many ways, in the wrong direction.

RS: The Constitution doesn’t mention corporations, right?

AW: That’s right.

RS: And so, and you actually say, I think it’s on page 52, I thought it was an interesting statement, you said, “Although the Framers had not set out to protect corporations”–and you were describing, I think, Binney and the first legal case in which they were making a counterargument. And the other thing is that the Constitution sort of reeks with the notion from the Declaration of Independence that we’re endowed by our creators with certain inalienable rights. And I don’t think you’re making the case that the Founders thought corporations had inalienable rights; in fact, corporations existed by virtue of government power, right? It wasn’t the creator. It wasn’t the natural order of things. It was the King of England said, you can be a corporation, and they put down very specific regulations for what they wanted that corporation to do, how it collected its money, and so forth. And while the notion of the corporation has changed, this could be a two-edged sword. Because if the corporation’s model of the Founders is one of government having to grant it, that means government could put down all sorts of restrictions on corporate behavior, couldn’t it?

AW: Yes, that’s right. And this has been a big issue for, for instance, for originalist justices on the Supreme Court, like Antonin Scalia, who argued that we should interpret the Constitution solely by lights of the original understanding of that document when it was adopted. And it’s clear that the Framers were never thinking about protecting corporations when they wrote the Constitution, but nonetheless, the Supreme Court has over the course of 200 years broadly read the Constitution apart from the original understanding to extend rights to corporations. And they’ve been doing it for a long, long time. And in fact, the first Supreme Court case to extend constitutional protections to corporations was decided in 1809–that’s a half century before the first Supreme Court cases on the rights of African Americans and women. And by the way, African Americans and women lost their cases, unlike the corporation in the first corporate rights case. So the Framers weren’t thinking about corporations. But the Supreme Court is often accused of sort of a living Constitution, reading the Constitution in a way that’s evolutionary to accept new people, like LGBT people or black people or women. But the truth is, is the Court’s generally been reading the Constitution very broadly as a living document to protect business corporations more than anyone else.

RS: Privilege always operated in this country; wealth always had power. And that has to do with the writing of the Constitution, but it also had to do with interpreting the Constitution. Because as you point out in your book, and it’s fascinating history in this respect, that first decision about banking and so forth–and yes, it preceded not only Dred Scott, but Dred Scott turned against black people–but in that decision Binney, a guy who, what did he, he started the Hasty Pudding club at Harvard and everything, you know? Well, he came from privilege, and he was living on a block, I believe, with Washington and, what, Madison or Jefferson–

AW: Hamilton.

RS: Hamilton. And so here you had, very early on, the people of wealth, the corporations that existed, that had the charters, also could hire the most effective lawyers. And they could rig the game. And so constitutional interpretation has been rigged to people of privilege, as generally the whole legal system, from day one. And this is really what the Beards were calling attention to, that these fellows not only had wigs on, but they had slaves, they had property, they had interests, and so forth. And they took care of their interests.

AW: And they were stockholders. Many of them were owners of, held shares in stock of the sort of emerging stock corporations of the early 1800s.

RS: Yeah, you point out Washington, I think, and even Jefferson and so forth, right?

AW: Yeah, they were stockholders. And so it’s not surprising that they protected their interests. And you really point out an important theme that I found in the book, in that one of the reasons why corporations have been so successful in winning constitutional protections is that they’ve been able to hire the best, most creative lawyers from the get-go. When you think about, great lawyers have always played a starring role in the civil rights movements; Thurgood Marshall, or Ruth Bader Ginsburg. But those organizations and movements have generally been underfunded, not been able to bring all the cases they want, not been able to hire always the best lawyers; sometimes they’ve had great lawyers, don’t get me wrong. But corporations have always been able to hire those good lawyers, and file risky lawsuits that even if they have a strong chance they’re going to lose, they may be worth part of the cost of doing business, if you will, for corporations. And so they’ve been able to finance litigation over and over and over again, and one of the surprising things that really comes out of that is that as a result, corporations have often been innovators and first movers in American constitutional law, often helping to breathe life into certain constitutional provisions that only later would be read broadly by the court to protect women and minorities and you and me.

RS: I mean, we have to face the fact that our Constitution–and this really confounds the originalists–was a deeply flawed document. I happen to argue it’s also the most interesting limitation on government that the world has ever seen; I respect the Constitution very much, I don’t think any other government has this clear definition of the ability of power to corrupt, and the need to restrain power, and so forth. So I’m a great admirer of it. But the strict interpreters of it, the so-called conservatives on the court, really are strictly interpreting a racist, misogynist document that protected the richest people in this society. And I think your discussion at the beginning of this is quite clear. However, even there, in the document they produced, they did not–and maybe you could discuss that–they did not do what the court now did with Citizens United. They did not clearly extend to corporations the protections of the Bill of Rights, or generally the Constitution; they must have been a little bit wary of doing that. Because after all, corporations were suspect. There were plenty of people living here in the colonies who hated–after all, when they threw the tea out, the Boston Tea Party was against a corporation, right?

AW: That’s right. We think about the Boston Tea Party as a protest against the British government, but the reason why the British government had affected, legislated on the tea tax was as a bailout for the most powerful corporation in the world at the time, the East India Company, which was responsible for importing tea into the colonies. And as part of this massive bailout, the East India Company won the right for the very first time to sell tea in the colonies without using American middlemen. And so what the Boston Tea Party was, was a revolt of people who were upset that American merchants and businessmen were being cut out of the tea trade. And they targeted that tea, that boat, that night because they wanted to throw over the tea of the East India Company. And so the corporation was something that the Framers were actually pretty worried about, at least in, at the time of the Revolution. But something interesting happened right after the Revolution, which is that right after the Constitution was adopted in the late 1780s, early 1790s, you had a huge growth in the number of corporations in America. They started to be used for everything, and by the 1800s there were over 300 corporations in the 13 colonies, a growth, an expansion of corporations that was really unprecedented.

RS: I personally think a lot of the outrage over Citizens United is a bit exaggerated. Because the fact is—I mean, for example, in Obama’s campaign against John McCain we did have a public finance alternative. People have ignored that fact. And Barack Obama decided not to use it. Right? McCain was using it.

AW: That’s right.

RS: So for all the people, and particularly democrats, railing against Citizens United, the fact is there are mechanisms in place now to have campaign finance reform, if you choose to support them and use them, right?

AW: Yes.

RS: There’s nothing in Citizens United that says you can’t have public funding of a presidential campaign.

AW: No, that’s right, although I will say that the Supreme Court has enacted certain doctrines, or has ruled in certain ways in recent cases making in harder to have public financing systems. And so a lot of clean money advocates who have been promoting a vision of public financing have found that the Supreme Court has been pretty hostile. And so you can still have a public financing regime, but the Supreme Court, in Citizens United and other decisions, has made clear that independent people who want to make expenditures and take out ads favoring a candidate, that doesn’t count against a candidate’s public funds, or doesn’t count as a contribution to their campaign. And that’s really one of the big issues about Citizens United. We think about it as really empowering corporations to spend money, and it does do that. But it’s also empowered individuals to spend money, and most of the money that’s come into the political system, the dark money that’s come in in the wake of Citizens United, hasn’t been corporate money. It’s been individual money, it’s been a little bit of corporate money, a little bit of union money. I don’t know whether in the future we’re going to see much more corporate money; I wouldn’t be surprised if we did. One of the things I find in my book is that especially when it comes to political activity, corporations are often not first movers. They like to wait ’til progressives have sort of set the stage. And indeed, it was unions that devised the PACs that corporations would later use to become extremely powerful.

RS: And the real problem is transparency. And a corporation, by definition, has to worry—yes, OK, we can argue about whether it’s a person or not. But the good thing is, if they are out there, they have to worry about the consequence of their backing something, OK. And we see that; I mean, you know, any big corporation, they shift one way or they shift another way, they’re going to lose customers, they’re going to get heat and so forth. And so it seems to me the real issue is, is the money transparent, is it obvious that it’s going into a campaign, more so than where is it coming from.

AW: Well, I think transparency can be overrated in the sense that, I mean, transparency, if we see that Sheldon Adelson’s spending $90 million to elect Mitt Romney, yeah, we know that, and I guess that’s, it’s good to know it, better than not knowing it. But the problem with someone getting $90 million from one person is that that person’s going to have an outsized influence on that elected official.

RS: Agreed. And I personally would like to ban all of it. But that’s not, my point is only on this corporate-as-a-person thing. Because if his casino is backing a candidate, then there are people who might not want to go to his casino, OK? If Apple, you know, which has I think an enlightened position on gay issues and so forth—they have to take some lumps. I do stress transparency, because at least in a company case, if people knew not only what Sheldon Adelson was doing but how they can get back at him by not going to his businesses, then at least you have a restraint on this use of money, I think.

AW: No, I think that’s very possible, and I think it’s part of what we’re all looking for in light of the Supreme Court’s strict limits on what we can do in the campaign finance area, is to try to find other ways that we can try to make more transparent and make our system more democratic and more open. One of the things that I find is that, I found that there was, a hundred years ago, courts dealt with the issue of whether corporations had a constitutional right to spend their money to influence elections. A series of cases arose out of the Prohibition era, as in the run-up to Prohibition, brewing companies wanted to take out ads and whatnot to influence those elections so that they wouldn’t ban alcohol. And they chafed against these early campaign-finance laws that restricted corporate money in elections, and they went to court and challenged them as a violation of their constitutional rights, a hundred years before Citizens United. The courts back then, though, said that corporations had property rights, not liberty rights. They didn’t have the right to personal freedom and democratic participation, and the courts 100 years ago universally upheld those campaign finance laws. That line between sort of property rights and liberty rights seems to be one that the Supreme Court has lost sight of.

RS: There are certain liberty rights—I hate to be challenging the professor here–that we do accept that corporations have. Because they do require maybe a degree of privacy, and so forth, no?

AW: One of the things I definitely concluded after writing the book—the book is not a work of advocacy one way or the other, it’s a history book looking backwards. But one of the things that I sort of drew out of the book is that the corporations need some constitutional protections. As you know, there’s a constitutional movement to amend the Constitution, to add a 28th amendment that would outlaw corporate rights, that would say corporations are not people, supported by a lot of big organizations–Move to Amend, Public Citizen, and others. I think that constitutional amendment would be a mistake, although I understand its motivations and desire to scale back corporate power. Corporations need basic protections for their property rights, otherwise the government could come and seize a corporation’s assets without paying just compensation. We want corporations to have due process rights, so Apple can fight against the federal government and the FBI when it says, we want you to open up this iPhone. Apple wouldn’t do that if it didn’t have due process rights. And of course we want corporations like The New York Times and CNN to have, even though they’re corporations, to have some free speech rights, otherwise they could be censored. So I think we need to have a nuanced approach to the rights of corporations. They need some constitutional protections, but that doesn’t mean they need all the same constitutional protections as you and me.

RS: We’re going to take a break right now, and I want to get back to what room we have left to make our politics accountable and not have money drown everything. So I want to get constructive here. Be right back. [omission for station break] And so let me ask you, as a constitutional scholar, how significant is Citizens United? How much room is there now for making this political system more accountable?

AW: I think that Citizens United is a very important case, not just for freeing up corporations, but for making it a little bit harder to stop people from making independent ads. The Supreme Court in Citizens United also emphasized that if an individual or a corporation wants to spend money on an election ad, and it’s not coordinated in any way with the candidate, then there’s no potential corruption that could come from that. I don’t think that’s right. We should see Citizens United, though, as part of a larger pattern. And the Supreme Court under Chief Justice John Roberts has invalidated quite a number of campaign finance laws and made it much harder to achieve that kind of transparency that many of us are seeking. And new limits, and in fact there’s a case that may be going up to the Supreme Court that was just decided this week by the Ninth Circuit, the federal court here in California and the western states, that upheld some campaign contribution limits, and over a vigorous dissent by one of the republican appointed justices. And there is at least some speculation among election-law scholars that the Supreme Court may take this case next year and declare that all contribution limits are unconstitutional. Which would make it that much harder to have accountability and transparency, and restrict the flow of money to our elected officials.

RS: What can be done? I mean, one perspective would be, OK, let’s limit the power of government. For example, let’s just take the whole area of foreign policy. Our Founders, and you’re a constitutional scholar, it seems to me were in pretty much agreement that we should not get extended too much abroad, foreign entanglements and so forth, because then the individual citizens would lose accountability; they wouldn’t know what’s going on, they could be easily lied to. And that was their sort of view of what happened to England and Rome and everyone else, you know. So we wanted to keep the dimensions. You could also say, look, if we really have a market system, let government stick with making the product safe and accuracy and so forth. And you know, and that means also not bailing out the banks. [Laughs] Not having the Fed as a backup. There’s a kind of more pure libertarian position that argues all that; get back to Adam Smith, keep the scale low, prevent mergers, anti-trusts and so forth, and not have government micromanage. And isn’t that somewhat close to what the Founders really had in mind?

AW: Well, I will say, I think sometimes we can often fail to see, history can blind us to the ways in which the Founders did regulate business and did regulate trade. And they didn’t have the kind of big bureaucracies that we have today; the economy was so much different back then. But there’s been a lot of really interesting, great, historical work about the extent to which, even in the colonial era and the early state era and the early 1800s, how often government did regulate for the public’s safety and welfare. And that’s partly why corporations were seeking constitutional rights from our earliest days. The reason why corporations want these rights is because they can fight back against regulation of business. They can strike down a law that’s designed to regulate or restrict what businesses do in the interest of investors or consumers or the public at large. And when they lose in the legislature, which corporations don’t do that often, they can use these rights to go to court to try to overturn those laws. And from the earliest days of America, corporations are really flooding the courts with these constitutional claims, trying to get out of regulation and to avoid efforts by we the people to regulate business. So I do think, yeah, there’s no doubt the framers had a more libertarian understanding of the economy than we have, to be sure. But from the early days, there were efforts to regulate businesses and try to soften some of those hard edges. And corporations have always pushed back by using the Constitution.

RS: OK, but with all due respect, I don’t think you’re setting it up—this is not the only dichotomy. Another view is, in fact–and the banking meltdown, what happened in the Great Recession is a very good example–regulation in the sense of preventing crime, clearly, any society has to do that, right? So for instance, of giving people fraudulent loans; of lying to them; of distorting the situation; of colluding to prevent their getting information, or to game the system, or to control the interest rates, Libor, or so forth—all of the stuff that’s come out–these are crimes. And basically, one could argue that in the name of deregulation, all the banks did was prevent policing of crime. Something poor people can’t do; if they steal your iPhone, they’re going to go to jail, but you know if the banks can change the law so it’s not a crime to lie to people about their mortgage application and the interest rate—and to rig the interest rate and so forth—what you’re really talking about is not deregulation, you’re talking about effectively using the government to conceal your theft of property, or crime and so forth. So I don’t think the thing is put right. And in your book, I learned that even the King of England, when he did grant the charter to these corporations, demanded accountability and transparency. And you actually argue in your book that these original corporations were kind of a model of transparent governance; there had to be board meetings, there had to be public meetings, there had to be information and so forth. And the scale was going to be quite small. So maybe you could talk about that. Because you know, the argument that’s always put is, either give business a blank check, which then, what, they’re licensed to steal and create monopolies and prevent competition; or, in fact, treat them the same way you treat your poorer individuals, hold them responsible when they steal and they take advantage and when they distort, right?

AW: That’s right. And in some ways, our own Constitution draws its heritage from the early colonial corporate charters of the early colonies. That were, like I said, set up as corporations, as business corporations—

RS: But accountable.

AW: They were accountable. They had investors, the King wanted to oversee them and did oversee them pretty closely. But they were set up as corporations; as corporations, they had a charter from the government, a document, like you said earlier, that had to be granted by the government so they could operate. And those charters were heavily detailed in the way they regulated business. As you said, they really, that was the way in which businesses were regulated, through charters. And these charters specified who could hold office, what the officeholders’ rights were, what the limits of the officeholders’ powers were, what the rights were of the members to come together and to try to enact bylaws. All those things that were part of the corporate organization came to really influence the Founders’ ideas of government. And by the time they’re writing the Constitution, they’re not thinking about these in corporate terms, but they’re still thinking about, government should have a written charter, a written document that limits what officeholders can do, and that provides rights for people to participate in lawmaking, and recognizes their individual rights. So you’re absolutely right, there’s ways in which the corporation was influencing democracy from the very earliest days, and influenced sort of the shape of the Constitution.

RS: Much of what’s called deregulation, as I say, is a way of obscuring what’s going on. You know, so you say, we’ll get away with all of the New Deal banking regulations—well, those were just transparency regulations; what are you doing, who are you doing it to, what information are you sharing. Certainly the freedom of corporations to game the interest rate, and the Libor and all that sort of thing–that is just simply a license to steal.

AW: That’s right. It’s so funny, we think about deregulation often as about taking out of law, right, or rescinding legal rules that are burdens on business. But in many times, those burdens are really designed to help us, and things like disclosure laws. And if you get deregulation and exemptions from disclosure laws, you’re really going to hurt the individuals who rely on those disclosure laws. And this is part of the reason why corporations get those constitutional rights and seek to assert them. So for instance, in recent years we’ve seen corporations use the First Amendment to fight back against laws requiring graphic cigarette warnings on tobacco, on cigarette labels. We’ve seen corporations fight against rules requiring disclosure of the use of conflict minerals. And indeed, by one study, 50 percent of all First Amendment cases brought today are brought by corporations and businesses and trade associations seeking to fight back against basic kinds of laws that are requiring them to disclose information for consumers. So it really does show you how this effort of corporations to both manipulate the government so it serves businesses, and also use the Constitution to disempower government from imposing various kinds of obligations on corporations, very actively these days.

RS: The original creators of our Constitution had a very strong sense of states’ rights. They said all these powers not specifically given to the federal government are reserved to the states. And what happened after the writing—so after the original document, rich, powerful people in this country hired the smartest lawyers from the best schools, and got them to subvert the intent of the Founders. Because certainly—and take the case of Texas entering the union as a very good example. When Texas entered the union, their main concern of the people in Texas was to restrain the role of the banks, because the banks were associated with swindling people out of their claims, and so forth. They didn’t even want banks to give mortgages and so forth. Over the years, and that’s why Texas was hurt less in the banking meltdown than California, because they still had some tradition. What happened was through the courts and the Congress, the rights of the states to regulate the banks and other corporations was very much limited. Taken away. In fact, the early decisions you cite had to do with controlling state—first decision, the united bank and so forth–

AW: Yeah, Bank of the United States v. Deveaux, was one of the first Supreme Court cases.

RS: Yeah, that case was taking away the power of the state. And so the originalists are full of it. They’re lying when they say, we care about what’s in that Constitution. Because the people who wrote the Constitution, if there was anything in their mind, was not to cede too much power to this new federal entity that they were oversuspicious of. And so what you had after the writing of this Constitution is rich and powerful people getting into the courts and, really, subverting this constitutional principle. And Citizens United is kind of the culmination of that.

AW: Yeah, I think that’s right. I think that’s the way to think about it. Citizens United is the case that sort of shows, sort of took a spotlight and has shone it on this issue, really highlighted the question of corporate power in the courts, and how corporations have used the Constitution to expand their influence on—

RS: No, used the courts. And distorted the Constitution.

AW: Yeah. Well, yeah, that’s right. Used the courts and distorted the Constitution, I think that’s right. And that’s why, I guess, on the cover of my book there’s a balled-up Constitution, you know, showing what can become of the Constitution when in the hands of the wealthiest and powerful interests of corporations.

RS: So, one final point, because we really haven’t talked about the 14th Amendment. And the thing that is sort of enraging about your book–because I mean, I just want to read the 14th Amendment, Section 1: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” And the obscenity that your book describes is that this court system, which is this branch of government which we somehow have come to think of as the saving grace of democracy, actually destroyed the meaning of this amendment. Really, now, you can’t put too fine a point on it. Because the idea that this amendment was used primarily for the first, what, 70 or 80 years or longer to benefit corporations while keeping black people in bondage—slavery, or segregation, certainly—while keeping women in an indentured servant’s status, as objects. What your book details, you don’t put that harsh a point on it, it’s not a rhetorical book, but the fact is it’s the subversion of the 14th Amendment, by the corporations, by the rich.

AW: That’s right. It’s one of the most remarkable stories, I think, in the history of the Supreme Court. The 14th Amendment, adopted after the Civil War to protect the rights of the newly freed slaves—

RS: By radicals. Written by radicals. Populists. Yeah.

AW: Written by radicals, progressive radicals, right. And yet about a little less than 15 years after the 14th Amendment was ratified in 1868, the Southern Pacific Railroad company, a powerful, wealthy corporation here on the West Coast, launched a remarkable series of what its lawyers called “test cases,” seeking to win a Supreme Court ruling giving them rights under the 14th Amendment. And what was so remarkable was that the Southern Pacific Railroad hired a lawyer by the name of Roscoe Conkling, who was an illustrious politician at the time, and had been one of the drafters of the 14th Amendment. And Conkling went to the Supreme Court and said that the 14th Amendment was drafted specifically to protect corporations, too, and even produced a musty old journal that he claimed supported his story. It turns out that historians have gone back and realized that Roscoe Conkling had just flat-out lied to the justices of the Supreme Court. Nonetheless, the Supreme Court a few years later adopted Roscoe Conkling’s theory of the 14th Amendment, said corporations were protected. And in about the first half-century of the 14th Amendment, the Supreme Court heard only 28 cases on the rights of African Americans, mostly ruling against them. And during that same time, the court heard 312 cases on the rights of business corporations, often ruling in favor of those businesses.

RS: Well, that’s going to have to do it for this interview with Adam Winkler, a professor of constitutional law at UCLA’s School of Law, and the author of a really important book on Citizens United, basically, but the roots going back to our original Constitution, “We the Corporations: How American Businesses Won Their Civil Rights.” The producers for today’s show are Joshua Scheer and Rebecca Mooney. Kat Yore and Mario Diaz here at KCRW are the engineers. See you next week.

After Texas School Massacre, Facebook Trolls Spread Disinformation

It’s a horrifyingly common pattern. First, the tragic event, such as America’s latest school shooting, in Galveston County, Texas, on Friday. Then, the grief over the loss of lives is compounded by online hoaxes and disinformation—especially on Facebook.

In the aftermath of the shooting at Santa Fe High School that left 10 people dead, the online trolls wasted no time in creating their first hoax. Among other things, they created fake photos of the suspect, Dimitrios Pagourtzis, wearing a hat saying “Hillary 2016.”

This and similar postings were quickly flagged and removed by the social network, but as The Washington Post notes, “others rose rapidly in their place.” Also:

Chris Sampson, a disinformation analyst for a counterterrorism think tank, said he could see new fakes as they were being created and filled out with false information, including images linking the suspect to the anti-fascist group Antifa.

What Sampson and others found particularly jarring about the fake responses to the Santa Fe High shooting, however, was how quickly these posts not only spread but became viral weapons in a widespread disinformation war. Sampson, according to the Post’s article, “said he watched the clock after the suspect was first named by police to see how long it would take for a fake Facebook account to be created in the suspect’s name: less than 20 minutes.”

Many of the fake accounts were under Pagourtzis’ name. It’s not clear who created them, but that they were created and spread so easily is a sobering reminder of just how ill-prepared Facebook is to deal with an influx of fake posts and profiles.

The company was already under fire for how its posts and ads may have impacted the outcome of the 2016 presidential election.

Facebook has released 3,000 ads by the Kremlin-backed group Internet Research Agency. These ads didn’t provide the smoking gun many “Russiagate” believers had been hoping for, but they did reveal just how easy it is for anyone, foreign actor or not, to create false information on Facebook that can quickly go viral.

“What I’d say surprises me is the low threshold for ad buys,” Nina Jankowicz, global fellow at the Woodrow Wilson Center’s Kennan Institute, who studies disinformation, told Truthdig. “We’re talking pennies and dollars for most of them,” she continued, with “a few notable exceptions in the $100 range, and even fewer above $1,000.” In some cases, users didn’t even have to pay for ads but could simply create organic-seeming posts with blatantly false information.

Facebook, in response to both the Internet Research Agency ads and the posts after the Santa Fe High shooting, has said that it has 10,000 human moderators watching the site and intends to double that number by the end of the year.

Still, all social networks have a long way to go toward preventing something like this from happening again, the Post story points out: “Some critics suggested the site should force new accounts into a waiting period before they are publicly available or that the company should more aggressively watch names in the news for potential fakes.”

Truthdig has launched a reader-funded project—its first ever—to document the Poor People’s Campaign. Please help us by making a donation.

The Poor People’s Campaign: Building Morality From the Ground Up

Editor’s note: On May 14, Truthdig was on the ground with correspondents in Washington, D.C., to document the first day of the Poor People’s Campaign. To see Truthdig’s multimedia coverage of the action, click here. For Truthdig photojournalist Michael Nigro’s audio photo essay, click here.

The Revs. William Barber II and Liz Theoharis stood side by side, gowned in religious vestments, on a small stage on the northeast grounds of the U.S. Capitol in Washington, D.C. The two looked small against the backdrop of the giant, sundae-shaped building. Approximately 500 people were assembled and looked to the clerics, waiting for them to lead a march into the streets and into the arresting hands of the Capitol police.

First, Barber had a message to everyone present. “The march in Birmingham started with 58 people,” he said, his voice resonating like a bow across a bass cello. “But it ended with thousands!”

Five hundred people seems like a small turnout—until you factor in the other gatherings that took place in 39 states nationwide, in solidarity with this one.

So, in fact, thousands of people from local and grass-roots groups across the country have answered Barber and Theoharis’ call for a mass mobilization.

No, this is not the sequel to the Netflix series “Wild Wild Country.” This is not a cult. This is not centered around any particular religion, either.

This is a movement. This is a campaign formed to challenge extremism locally and at the federal level. This is a continuation of Martin Luther King Jr.’s work in 1968, reigniting the effort led by civil rights organizations, labor and tenant unions, farmworkers, Native American elders and grass-roots organizers.

This is not a matter of left or right. This is not a matter of Democrat or Republican. This is not a matter of conservative or liberal. This is a matter of right and wrong.

This is the Poor People’s Campaign: A National Call for a Moral Revival.

The organizers’ strategy is to build this movement from the ground up, not from the top down. For six consecutive weeks, activists will engage in nonviolent civil disobedience in more than 30 states and Washington, D.C., demanding new programs to lift up 140 million Americans living in poverty and immediate attention to environmental devastation, systemic racism and the war economy.

With the Democratic Party’s pseudo-resistance movement (resulting in enabled, deregulated banks, passed military spending, expanded surveillance powers, Gina Haspel) and the Republican Party continuing to create systems of death (gutting Medicare/Medicaid, assaulting the environment, creating an unreachable livable wage), the Poor People’s Campaign is looking to redefine America’s distorted moral narrative.

Poverty is violence.

A war economy is immoral.

13.8 million U.S. households cannot afford water.

These were statements on a few of the signs held up during the first action in Washington, D.C., but they also are a reality.

The wolf is at the door for 140 million Americans, and, according to the Poor People’s Campaign’s agenda, “Many Americans appear to have forgotten their own values and become blind to the needs of other human beings, even those they may still hold in their hearts.”

The organizers aim to bring attention to impoverished Americans amid a political leadership riven with greed and untethered to morality.

The flip side? The system is working perfectly fine for politicians and their corporate employers. They do not want this nonviolent movement to gain any sort of momentum. The corporate media is complicit in this. Although actions took place all over the country, many media outlets chose not to cover them. In Michigan and Tennessee, when activists sat down in the streets, law enforcement refused to make arrests, defusing some of the media attention.

Stay tuned.

Good is a powerful force.

The theme for Week 2 is “Linking Systemic Racism and Poverty: Voting Rights, Ending Mass Incarceration, Justice for Immigrants and Indigenous Communities, and Ending Islamophobia.”

Truthdig has launched a reader-funded project—its first ever—to document the Poor People’s Campaign. Please help us by making a donation.

American History for Truthdiggers: Washington’s Turbulent Administration (1789-1796)

Editor’s note: The past is prologue. The stories we tell about ourselves and our forebears inform the sort of country we think we are and help determine public policy. As our current president promises to “Make America great again,” this moment is an appropriate time to reconsider our past, look back at various eras of United States history and re-evaluate America’s origins. When, exactly, were we “great”?

Below is the ninth installment of the “American History for Truthdiggers” series, a pull-no-punches appraisal of our shared, if flawed, past. The author of the series, Danny Sjursen, an active-duty major in the U.S. Army, served military tours in Iraq and Afghanistan and taught the nation’s checkered, often inspiring past when he was an assistant professor of history at West Point. His wartime experiences, his scholarship, his skill as a writer and his patriotism illuminate these Truthdig posts.

Part 9 of “American History for Truthdiggers.” / See: Part 1; Part 2; Part 3; Part 4; Part 5; Part 6; Part 7; Part 8.

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“What a stupendous, what an incomprehensible machine is man! Who can endure toil, famine, stripes, imprisonment & death itself in vindication of his own liberty, and the next moment … inflict on his fellow men a bondage, one hour of which is fraught with more misery than ages of that which he rose in rebellion to oppose.” —Thomas Jefferson in a letter to John Adams (1816)

Close your eyes and imagine America as it was under the administration of President George Washington. No doubt, most readers would envision a heroic, tranquil time, when all was right and the great Founders ruled the United States as they had intended. It’s a comforting myth and, to be sure, a reflection of a closely held nationalist narrative: America may have faltered, may even have been off track at times, but once, under the steady hands of men like Washington, all was as it should be. How, then, are Americans to process the reality of the first president’s tenure—an age of turmoil, violence and division? Perhaps this: As Billy Joel sings, “The good old days weren’t all that good,” and as John Adams wrote, “Divided we ever have been, and ever must be.”

When Washington became president, no one was surprised. No other man had the fame, confidence or esteem to preside over the early American republic. Still, the former general inherited a fiercely riven nation, a republic that had only barely ratified the controversial Constitution. “Anti-Federalists,” or opponents of the Constitution, had not simply disappeared, and a significant mass of Americans distrusted the growing power of the central government.

President Washington would rule a union of states wildly different from the modern U.S. The West remained generally unsettled—populated and contested by still powerful Indian confederacies, led by the Miami in Ohio and the Cherokees/Creeks in the South. The U.S. was still mainly rural, with 80 percent of the population engaged in farming. Most farmers (including many Indian tribes) engaged in semi-subsistence agriculture, consuming much of what they grew but also relying on local trade and barter, as well as the purchase of products such as sugar, salt and coffee. On the Atlantic coast, of course, and in the larger cities, a sizable minority of Americans was increasingly tied to the national and international commercial economy. These two competing visions of the American Dream—rural versus more heavily populated areas—would remain in tension for decades to come.

A Question of Fairness: Alexander Hamilton’s Economic Program

Alexander Hamilton, by John Trumbull (circa 1805).

“[I have] long since learned to hold popular opinion of no value.” —Alexander Hamilton

No one better reflected the commercial and national centralization mindset than the West Indian-born bastard (and notably self-made man) Treasury Secretary Alexander Hamilton. It is curious that one of such humble circumstances would not only rise to such prominent heights but espouse such an aristocratic agenda. Nonetheless, for better or worse, Hamilton—now the title character in an acclaimed Broadway hip-hop production—would dominate the economic (and political) policies of the Washington administration.

Oddly, however, the state (and economy) that Hamilton envisioned for the U.S. was most similar to that of Britain, which he called “the best [government] in the world.” Sure, the Americans had revolted against the mother country, but now, according to the treasury secretary, it needed to model itself after the old empire. Hamilton promoted banks, federal power and, most controversially, the funding and assumption of state debts.

Remember back to the Revolution when soldiers and merchants were paid in near-worthless Continental paper currency. For fear of starvation and penury, most veterans had little choice but to sell their bills and bonds to wealthy speculators at just a fraction of face value. Now, said Hamilton, the new federal government should assume all state debts—thereby eliminating the need for most state-level taxation—and fund, or pay out, the full face value of the bonds and Continental currency in speculators’ hands. Though the states were grateful for the debt relief and citizens appreciated the steadily decreasing rates of local taxation, the plan for funding and assumption was controversial from the start.

It is easy to see why. Economics is rarely a simple matter of dollars and cents, of reason and records. There is also a moral component—even today—along with a sense of the need for justice in public economy. Why, many former soldiers and farmers asked, should already affluent speculators and stock-jobbers receive such a windfall from the government? Why should hard-earned tax dollars pay the printed value, rather than the fair market value, of the inflation-prone Revolutionary currency? Shouldn’t, as now Hamilton opponent James Madison argued, the government make a distinction between the original holders of the notes and the speculating elites now in possession of most outstanding bonds?

To modern, especially populist ears, these questions seem reasonable—just, even. Nonetheless, Hamilton argued that in order to develop confidence in the market and earn international credit and standing, the U.S. must fund the bonds at face value and not distinguish between current and original owners. The funding dispute that arose may seem a slight matter to modern readers, but an understanding may be gained by comparing it with the argument over the Wall Street bank “bailouts” of 2008 and 2009 at the start of the Great Recession. Furthermore, to understand the passion of the funding debate, consider that upward of 40 percent of federal revenue in the 1790s went to pay interest on the funded debt.

Hamilton’s position came to reflect that of most Federalists—mostly wealthy, urban types who were early proponents of the Constitution. In order to succeed, Hamilton believed, the government must primarily associate and concern itself with the wealthy, commercial elites. Hamilton held a strong belief that human nature was fundamentally selfish and thus there was no other course for a successful government than to fix its hopes on the affluent. Hamilton, of course, was on shaky constitutional ground. But he never wavered. The treasury secretary argued that the Constitution granted the federal government implied as well as enumerated powers, manifested in the “necessary and proper” clause.

Not everyone agreed. Secretary of State Jefferson and many rural, former Anti-Federalists felt that the Constitution did not explicitly authorize Hamilton’s program and that federal powers should be strictly limited for the protection of the masses. After all, they exclaimed, didn’t we just wage a revolution against such policies? The opponents of Hamilton and his centralizing fiscal programs crafted an identity similar to the “country” Whigs of Britain and began to label Federalists with the notorious pejoratives “Tory” or “loyalist.”

Indeed, differing economic interests often linked to political interests and factions in the new republic. The commercial world of urban, coastal elites required an efficient transportation network and new roads for the rapid movement of goods into and out of the interior. Taxes, banks and the funding of debt would be required to generate the requisite investment. Those living in the semi-subsistence, rural world feared central power and were suspicious of “city values,” and most of these folks wished mainly to be left alone. Sound familiar? Indeed, this rural-versus-urban and cosmopolitan-versus-provincial conflict is still waged today. Exhibit one: the 2016 presidential election.

Aftershocks of Revolution: Explaining the Whiskey Rebellion

“Famous Whiskey Insurrection in Pennsylvania,” drawn by R.M. Devens in 1882.

A tea party protester in Colonial garb in 2009.

“An insurrection was announced and proclaimed and armed against, and marched against, but could never be found.” —Thomas Jefferson in a letter to James Monroe (May 26, 1795)

Consider the sketch and the photo above. The drawing depicts a riotous mob brutalizing and terrorizing a tax collector via the tried-and-true, all-American tactic of tarring and feathering. The image is similar to many depicting the struggle against British imperial taxation during the Revolutionary era. However, the scene depicted in this illustration is in Pennsylvania, and occurs a decade after the end of the War of Independence. The taxman is an American, a citizen of the United States, being tortured during the Whiskey Rebellion.

The photograph below the drawing depicts a modern American’s protest against the perceived excesses of federal taxation in 2009. Indeed, in what would come to be known as the tea party movement, many thousands of Americans—often in Colonial-era garb—took to the streets in that most American of public rituals: an anti-tax protest.

Anti-tax and anti-federal sentiment is as American as apple pie and still very much with us. But let’s return to the 1790s. Remember that Hamilton’s economic program, especially funding and assumption of state debts, would require significant federal revenue, even to pay the requisite interest. From where would this money come? Customs revenues, mainly, from taxes on imported goods entering the many natural harbors of the East Coast, but also from land sales, which would soon become possible with the conquest of Kentucky and Ohio. Still, neither source of income was sufficient, and thus Hamilton recommended an excise tax on distilled whiskey.

The western farmers along the Appalachian frontier—who often distilled their excess grain into whiskey for barter and sale—would bear the brunt of this new taxation. And, with a dearth of hard currency, these rural folk were perhaps the least equipped to pay it. Still, over the vigorous protests of the westerners, the Washington administration levied the tax in 1790.

The affected parties did not easily acquiesce. Most simply ignored the legislation and refused to pay. In western Pennsylvania, however, farmers in four counties openly defied the law, forming “committees of correspondence” (like the earlier anti-British patriots), terrorizing excise officers (in another rerun of the 1760s and ’70s) and closing the federal courts (ala Daniel Shays’ rebellion). To the rebels, the far-away Congress had no more right to tax them than had the Parliament in England. They sent petitions to Congress, formed local opposition assemblies and referred to the feds as “aristocrats” and “mercenary merchants.” Here was a semantic struggle for the soul of a new nation.

A circa-1795 work attributed to Frederick Kemmelmeyer shows President Washington with troops in Maryland before they marched to suppress the Whiskey Rebellion in Pennsylvania.

In other words, matters in western Pennsylvania and up and down the frontier weren’t unprecedented. Nevertheless, something had changed. Those protested against were now Americans, and the states were now governed by Washington’s post-constitutional administration, based just a few hundred miles to the east in Philadelphia. President Washington and the Federalists, fearing that the whole constitutional order might collapse, responded forcefully. In August 1794 the president donned his uniform and led an army of 13,000 federalized militiamen—a force larger than any he had commanded in the Revolution—and marched west. This was the first and last time a U.S. president would directly and personally command troops in a time of war or rebellion. How difficult it is, indeed, to picture a contemporary president leading a similar procession toward battle.

The Whiskey Rebellion was the single greatest incident of armed resistance to federal authority until the Civil War, yet the rebels dispersed as quickly as they had gathered once faced with Washington and his massive army. What matters, however, is that it happened at all; that rural unrest remained a powerful force—one that would be reaped by later political parties. Also significant was Washington’s response. The first president took the threat of rebellion and fracture very seriously. He knew the shakiness of the new republic and sought to send a message to the rebels. And send one he did, a rejoinder that Revolutionary War-era protests were no longer acceptable, that there would now be severe limits on public opposition to federal policies and, ultimately, that the government in Philadelphia (and later Washington, D.C.) was the supreme law of the land.

Conquering Ohio: The U.S. Army, “Mad” Anthony Wayne and a Doomed People

A statue of “Mad” Anthony Wayne at Valley Forge National Military Park in Pennsylvania.

“Civilization or death to all American savages!” —A popular military toast of the 1790s

A great portion of early federal revenue was allotted to interest payments on the funded debt associated with Hamilton’s economic program. Most of the rest, however, paid for the U.S. Army to wage war on Indians in the Ohio Country. Indeed, the first half of the 1790s saw some of the most vicious and contested native warfare in American history. Strangely, few Americans now know of the battles of this era.

The United States’ hold on the western territories (between the Appalachian Mountains and the Mississippi River) granted to the new republic in the Treaty of Paris (1783) was extremely tenuous. Spain closed the Mississippi River at New Orleans to American traffic and also tried to attract the loyalty of settlers in Kentucky and Tennessee to the Iberian crown in Madrid. The British army refused to vacate forts in the Ohio Country and continued to arm and support a growing native confederation still (understandably) hostile to American expansion.

However, in the face of these facts and despite the best, if paltry, efforts of the federal government to regulate and organize the settlement of the fertile lands north of the Ohio River, land-hungry pioneers flooded the territory, often refusing to pay for land and setting off conflict with the local native tribes. It was a mess, as hasty expansion often is. In order to sell the land, systematize the settlement and attract respectable, law-abiding colonizers, the Washington administration realized it would have to force peace—through conquest or surrender—on the Indians.

The natives, some 100,000 of them in the trans-Appalachian west, had other ideas. They had not been present in Paris or acceded to Britain signing over their homelands to the nascent American settlers’ republic. They would not capitulate easily or bargain away their independence. They had taken notice when the U.S. Senate ratified a treaty (the nation’s first) with the southern Creek Indians, and then the corrupt Georgia Legislature promptly broke it. In Ohio, it was to be war.

The problem for Washington was the diminutive, untrained, ill-disciplined army at his disposal. Though growing under the policies of Hamilton, the Army proved feeble in early efforts to bring the natives to heel. In 1790, Gen. Josiah Harmar led some 1,500 regulars and militiamen into the northwest Ohio Country. They were defeated in several small skirmishes, with heavy casualties, in the vicinity of present-day Fort Wayne, Ind. The next year, Gen. Arthur St. Clair led some 1,400 troops and militia to a disastrous fate. On Nov. 4, 1791, his unprepared troops were surprised and vanquished by 1,000 Indians commanded by the Miami chieftain Little Turtle. Six hundred soldiers were killed in by far the largest defeat ever in the U.S. history of Indian wars. To mock the Americans’ land hunger, the natives stuffed soil in the dead men’s mouths. It was a national humiliation.

Washington proceeded to build a professional standing army of 5,000 troops and doubled the military budget. A Revolutionary War hero, Gen. “Mad” Anthony Wayne, then took two full years to train his newly dubbed “American Legion” before decisively defeating the Indian confederation at the Battle of Fallen Timbers in 1794, near the site of present-day Toledo, Ohio. The British refused to save their Indian allies, as they were not willing to risk war with the American republic (they were already busy combating revolutionary France). The defeat and lack of external support sealed the fate of Ohio Country Indians and broke their resistance for another two decades.

The results of Wayne’s victory were immediate and profound. Native tribes submitted or moved westward, and the white settler population exploded. What had been decidedly Indian land just a few years earlier quickly resembled the white man’s land of the East Coast. Between 1790 and 1820, Kentucky’s population grew by a factor of eight. Ohio’s population also grew rapidly. Still, something far more fleeting was lost: the age of eastern Indian independence, an era when native tribes had often been able to play one European empire against another. The frenzied Americans’ desire for land ultimately posed a greater threat to native autonomy than that of any of the other European imperialists. The growth of the United States—a nation purportedly devoted to the equality of man—spelled the end of a very old and unique Native American culture.

Better Hell Than Party: The Development of Federalist and Republican Factions

“If I could not go to heaven but with a party, I would not go there at all.” —Thomas Jefferson, 1789

“Nothing could be more ill-judged than that intolerant spirit which has, at all times, characterized political parties.” —Alexander Hamilton, 1787

It wasn’t supposed to happen. Everyone, it seemed—including President Washington—opposed and feared the formation of political parties, or “factions” as they were often called. Still, the development of political blocs should have come as little surprise. Just as the republic remained divided between proponents and opponents of the Constitution, so Washington’s own Cabinet was split. The secretary of the treasury, Hamilton, desired that the U.S. become a centralized, British-style fiscal-military state; meanwhile, Secretary of State Jefferson had become the unofficial leader of numerous skeptics who feared and distrusted the federal government. Neither was initially willing to admit it, but these two foes quickly became the de facto heads of the Federalist and Republican parties, respectively.

The two emergent political parties had both a domestic and international component. Domestically, the Federalists represented wealthy, urbane holders of proprietary wealth and sought centralization of debts, finances and power in the federal Capitol. Hamilton was their intellectual muse, even if the staunchly anti-party George Washington emerged as their leader. The Republicans, under the de facto direction of Jefferson, represented more Southern, rural and agricultural interests and sought low taxation and minimal government interference. Jefferson, in fact, portrayed the contest as being not between two discrete political parties but between “aristocrats” (Federalists) and republican “defenders of the Revolution.”

The battle was both public and personal. The two men could not have been more different, and, given their divergent backgrounds, one might regard each as more suited to the opposing faction. Instead, in a bit of historical irony, the low-born son of the Caribbean, Hamilton, brought the poor man’s chip on his shoulder to the leadership of the more elitist party. Jefferson, on the other hand, a classically aristocratic gentleman of the South, crowed on about the “common man” and radical republicanism. History, indeed, is often stranger than fiction. Still, despite the underlying animosity, neither Hamilton nor Jefferson can be considered party leaders in the modern sense. In the world of the late 18th century, true “gentlemen” stood above politicking or campaigning, and relied on sometimes subtle literary attacks and the backing of allies and less prominent partisans.

The contours of this schism—of a kind still seen in our own day—would soon set off a few decades’ worth of political combat. Less remembered is the international component. The United States, after all, was never, and will never be, an island unto itself. In the early 1790s, just about all of the European Western World became embroiled in what would become a two-decade war with revolutionary France—which had ousted a king and declared a republic in 1789. Jefferson’s Republicans favored France in the ensuing global war, and, indeed, many staunch advocates of the revolutionaries argued (not without some merit) that America’s 1779 alliance with France obligated the U.S. to aid the burgeoning republic in its wars.

Thomas Paine, the famous author of the American Revolutionary tract “Common Sense,” considered himself an early-stage “citizen of the world” and, being the professional revolutionary he was, went to serve in the new French National Assembly. Jefferson, too, was remarkably radical—at least in correspondence—in his support for France. Even after the French Revolution executed the king and beheaded tens of thousands of “counterrevolutionaries,” Jefferson remarked:

The liberty of the whole earth was dependent on [the French Revolution] … and … rather than it should have failed, I would have seen half the earth desolated. Were there but an Adam and an Eve left in every country, and left free, it would be better than as it is now.

The Federalists, though initially sympathetic to their old allies and brother republicans, were soon more circumspect. They feared the radicalism and resultant bloodshed of the French Revolution and, if anything, began to favor their British cousins. Essentially, the wars of Europe polarized political factions across the Atlantic. Passions ran high and partisan divisions deepened.

We should, perhaps, be unsurprised that political parties quickly formed in the United States. This was a highly literate and literary culture, with widespread property ownership, a broad franchise (or voting rights) for white men, and many newspapers. These were litigious people, concerned with law, governance and societal mores. In that sense, despite the politicians’ regular proclamations to the contrary—so common in the 18th century—America was the perfect place for parties and factions to form. This was, in a way, the unintended consequence of the colonists’ revolution. Rebellion is messy—just ask today’s Arabs!

Vital Precedents: The Critical (if Flawed) Character of George Washington

“The alternate domination of one faction over another, sharpened by the spirit of revenge natural to party dissention … is itself a frightful despotism … sooner or later the chief of some prevailing faction more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of Public Liberty.” —George Washington

Washington owned slaves (though he freed them upon his death), he had ordered mutineers shot during the war and was by some measures the wealthiest man in all of America. Still, it is doubtful that any other citizen could have held the early republican experiment together. In his day, Washington epitomized public virtue and selflessness. Notoriously thin-skinned and ever cognizant of his reputation, Washington worked hard to bolster this image. Though he had become affiliated with the Federalist faction while serving as president, Washington aspired to be the disinterested arbiter of national affairs. He was certainly seen that way by most Americans; even his critics were loath to publicly disparage the president. It was often said that Washington was denied children of his own so that he could be the “father” of his country. And, indeed, he was.

It was assumed that Washington, like Polish kings of the era, would be elected but serve for life—an elective monarch. When the new president appeared in public, bands often played “God Save the King.” And, indeed, Washington was an aristocrat of sorts, a self-styled gentleman. He believed in the social hierarchy and mores of the Colonial era and firmly held that some men were born to rule, others to obey.

Nonetheless, it is to Washington that the U.S. republic may owe its greatest thanks. This man, this figurehead and celebrity of the Revolution, set many precedents as chief executive that have stood the test of time. Few of his successors dared to defy the unwritten codes Washington had set. He did not accept a crown though there were moments he might well have become a king; he stood apart from much legislative business and respected the prerogatives of Congress; he kept the U.S. out of foreign wars and, indeed, warned against entanglements in fixed alliances or other nations’ conflicts.

Most importantly, however, he left. After two terms, though he was not legally obliged to do so, Washington chose to step down, retire, and allow for a new presidential election. Had he not, it is doubtful that any of his successors would have done so and the U.S. may very well have mutated into a British-style constitutional monarchy. As it was, 30 consecutive executives followed the Washington precedent, and only after Franklin D. Roosevelt broke with the tradition in 1940 did a later Congress amend the Constitution to include presidential term limits. We cannot overestimate the significance of Washington’s decision.

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Be that as it may, it was a divided nation that Washington would pass along to his successors. A nation cleaved into increasingly oppositional factions of Federalists and Republicans; a nation at the brink of war with Britain, France, Spain or some combination of the three; a nation still engaged in westward conquest and fierce combat with Native Americans; and, of course, a nation uncertain as to its future.

Though Washington has lent his name to currency, schools, cities and parks, it is a sadly ironic truth that most of the stoic warnings from his farewell address were quickly ignored. Within four years of his retirement, bitterly oppositional political parties brought the nation close to revolution (are we not approaching something similar today?). By 1812 the U.S. would wage an indecisive war with Britain, and in the 20th century it would sign on to multiple, permanent foreign alliances of precisely the sort Washington feared. What, then, would the first president think of NATO, or modern America’s relationship with Israel or Saudi Arabia?

If Washington held the new country together, it was only just so—a near-run thing. So close your eyes again, reimagine America’s first presidential administration, and this time consider the precariousness of the American experiment.

Open your eyes. Flip on CNN.

It is precarious still.

* * *

To learn more about this topic, consider the following scholarly works:

● James West Davidson, Brian DeLay, Christine Leigh Heyrman, Mark H. Lytle, and Michael B. Stoff, “Experience History: Interpreting America’s Past,” Chapter 9: “The Early Republic, 1789-1824” (2011).

● Gary B. Nash, “African Americans in the Early Republic,” OAH Magazine of History 14, No. 2 (Winter 2000).

● Gary B. Nash, “The Unknown American Revolution: The Unruly Birth of Democracy and the Struggle to Create America” (2005).

● Gordon Wood, “The Significance of the Early Republic,” Journal of the Early Republic 8, No. 1 (Spring 1988).

● Gordon Wood, “Empire of Liberty: A History of the Early Republic, 1789-1815” (2009).

 

Maj. Danny Sjursen, a regular contributor to Truthdig, is a U.S. Army officer and former history instructor at West Point. He served tours with reconnaissance units in Iraq and Afghanistan. He has written a memoir and critical analysis of the Iraq War, “Ghost Riders of Baghdad: Soldiers, Civilians, and the Myth of the Surge.” He lives with his wife and four sons in Lawrence, Kan. Follow him on Twitter at @SkepticalVet and check out his new podcast, “Fortress on a Hill,” co-hosted with fellow vet Chris “Henri” Henrikson.

The views expressed in this article are those of the author, expressed in an unofficial capacity, and do not reflect the official policy or position of the Department of the Army, Department of Defense, or the U.S. government.

Texas Candidates Come Out in Support of Single-Payer

As 2020 presidential hopefuls such as Sens. Kirsten Gillibrand of New York and Kamala Harris of California voice support for single-payer health care, the concept has slowly found backing in some unlikely places. That includes the 2018 congressional races in Texas, where more than half the Democratic candidates competing Tuesday in the primary runoff elections have endorsed single-payer.

As Politico reported Saturday, while the national party is “trying to minimize internal battles on health care, Democrats in this deep red state have also watched closely races where single-payer advocates have upset centrist primary opponents.”

This group includes Beto O’Rourke, who is challenging Ted Cruz for a Senate seat. Before his 2016 presidential bid, Cruz was most famous for his staunch opposition to the Affordable Care Act (ACA), even helping to shut down the government in a failed repeal attempt in 2013.

Rather than trying to win over centrist Democrats or moderate Republicans, candidates are attempting to appeal to progressive voters who might have opted out of voting altogether. As Wendy Davis, a Democrat and former Texas gubernatorial candidate, told Politico, “I’ve heard the analogy before that we aren’t trying to get people to convert from Catholicism to Baptism, but trying to get people who are Baptist to come to church.”

And this isn’t happening only in Texas.

Across the country, attacks on the ACA have neither helped Republicans win elections nor made incumbents secure for the midterms. Grass-roots energy helped pack town halls—even in such staunchly red states as Arkansas—with constituents demanding that their Republican legislators stop their attempts at ACA repeal. In Virginia, Democrat Ralph Northam won the governor’s race against Republican Ed Gillespie for multiple reasons, but his support for both the ACA and for expanding Medicaid in that state helped.

Texas Democrats don’t expect the state to turn blue overnight, but as Politico notes, “the state’s Democrats face a very different political climate in 2018,” partly because voters across the country have rejected Republican attempts to repeal the ACA.

Not content to simply defend existing law, many candidates are channeling their energy to campaign for single-payer. “Health care is one of our No. 1 issues this election,” Tariq Thowfeek, communications director for the Texas Democratic Party, told Politico. “Our platform is far more progressive” than the national Democratic Party’s.

Some candidates, such as Lizzie Fletcher, who is seeking a House seat, believe this plan goes too far. Fletcher is a supporter of the ACA but not of single-payer. She is facing a runoff in Houston against Laura Moser, who supports single-payer. Fletcher believes that “[t]his is a traditionally Republican district that doesn’t think government is the solution to everything.” Moser retorted, “I hate it when Democrats use Republican talking points.”

Whether the leftward pivot yields results at the Texas ballot box on Tuesday or in November, experts and candidates believe this is a crucial moment to build support for single-payer.

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