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Monday, June 27, 2005

The Taking

The German word for war is “der Krieg.” It comes from the verb “kriegen” which means, “to take.” For Germans, war means “the taking.” With the latest Supreme Court ruling, war has clearly broken out between the rich and everyone else. But one thing needs to be kept clearly in mind – the ruling is not a victory for rich persons per se, but for a particular kind of rich person: the corporation.

The war began in 1776, when America’s founding fathers fought not only the British, but the British corporations that ran much of the American economy. The Dutch West Indies Company ran New York, the Virginias and the Carolinas. The Boston Tea Party was not just an assault on taxation, it was also an assault on the East India Company. Few realize how hated the corporations were, nor do we now remember that Jefferson and Madison attempted to pass an eleventh amendment in the Bill of Rights barring the establishment of corporations. It narrowly went down to defeat.

But even as the founders attempted to extirpate hydra-headed corporations and political parties from public life, both returned, and with a vengeance. The re-emergence of both were assisted by the courts.
America’s founders built the United States Constitution on the idea of enumerated powers - whatever power is not explicitly given to the government is not within the power of the government. The “doctrine” of judicial review is not an enumerated power; thus, the power does not belong to the courts and never has.
An oligarchy is a government by the few, a government in which a small group exercises control especially for corrupt and selfish purposes. We are now ruled by an oligarchy. The process of building an oligarchy began ever so slowly with Madison v. Marbury (1804), the ruling in which the Supreme Court created out of nothing the idea that it alone decided what is and is not law.

However, since the courts refrained from exercising their new-found “ability” until decades after the founders were dead, neither the legislative nor the executive branches gave this sudden arrogation of authority much attention. By the time the power was first used in Dred Scott vs. Sanford (1857), the other two branches of government had long since lost the living vision of the constitution’s founders. Political parties and corporations had arisen, both in direct contravention to the original vision.

By 1886, the courts had colluded with the corporations to give corporations unprecedented power. As Thom Hartman describes in Supreme Court documents were falsified, corporations were made to appear full and proper legal persons with full constitutional rights. Whereas Marbury vs. Madison and the power of judicial review had rarely been used prior to this date, it began to appear everywhere afterward. “The government of the people, by the people and for the people” has, through judicial manipulation, became the government of the corporation, by the corporation and for the corporation, and the corporation is hungry.
Just as the corporation eventually used the courts to create itself a person, so the corporation has now used the courts to successfully create itself a branch of the local government. We lament the fact that real estate can now be taken at will by anyone who can bring more taxable profit from the land than is currently being made. No one notices that it need not stop there.

If real estate can be taken in this manner, why not virtual estates? The Supreme Court has functionally changed the test of what can be taken. Taking is no longer based on blight, but on possible future tax revenues. If one test can be changed, why not another? If local governments’ need for tax revenue is the key, then there is no particular reason to limit takings to physical property.

What if I own patent or copyright to an idea that a corporation could use to generate more revenue than I can? Doesn’t the local government have a right to the increased tax revenue? Isn’t it a vital public interest to keep local government functioning? Why couldn’t city officials take over this blighted area of commerce (my patent/copyright) and hand it to someone who can make better use of it in order to enrich city coffers?
Scoff if you like, but you cannot deny the facts. It isn’t about justice. It’s about the taking.

1 comment:

John the Mad said...

I'm intrigued with your thesis on corporations. Never thought about it that way. You have my brain cells smoking.