Banning Corporate Personhood: How Communities Are Taking the Law Back from Big Companies | | AlterNet

Banning Corporate Personhood: How Communities Are Taking the Law Back from Big Companies | | AlterNet:

Banning Corporate Personhood: How Communities Are Taking the Law Back from Big Companies

Ben Price of the Community Environmental Legal Defense Fund explains how communities can fight corporate power with a new legal weapon.

July 14, 2011 |

These last few days for gas drilling news in New York as been critical and a new level of urgency has been reached as the country watches how New York defines and decides its fate, the future of its famous unfiltered water supply, and communities in the directly impacted regions, whether for or against drilling are forging ahead to determine their immediate future and that for future generations.

It's coming down to Home Rule and self-determination as a way to protect municipalities from fracking. As the Department of Environmental Conservation (DEC) releases New Recommendations for Drilling in New York explained in the Supplemental Generic Environmental Impact Statement (SGEIS) released a few days ago, environmental groups, like Catskill Mountainkeeper are calling for a statewide ban and municipalities organize to decide the fate of their towns.

One of the important and positive points in the otherwise very problematic and potentially dangerous draft, combined with a governor apparently wanting to surge forward with gas extraction is this: "Local Land Use & Zoning: Applicant must certify that a proposed activity is consistent with local land use and zoning laws. Failure to certify or a challenge by a locality would trigger additional DEC review before a permit could be issued." These words in the SGEIS give further power to Home Rule.

The Highland and Lumberland Committees on Energy and the Environment formed last year to decide the fate of their towns. They sponsored a forum on February 19th that was held at the Eldred High School to talk about the options that municipalities have to protect themselves from being industrialized and how the power of Home Rule can be preserved. The speakers were Helen Slottje, an attorney with the Community Environmental Defense Council based in Ithaca, NY and Ben Price, the Projects Director from the Community Environmental Legal Defense Fund (CELDF) located in Chambersburg, PA. Ben Price has been advising residents about stopping fracking in their communities acting on the premise that they already have the right to say no. He states, "...You have the right to protect your community, your families, your kids, your property values, your drinking water. These are fundamental rights..."

More towns in upstate New York are re-writing their plans and residents are becoming involved in their town politics whether organizing educational meetings, deciding to run for office and reaching out for advice. One such person is Narrowsburg resident Andrea Reynosa, an artist and farmer who lives with her family on a homestead that has been farmed since 1841. Their farm includes river frontage on the East Ten Mile River and sits in the Delaware River Valley, an area under urgent threat from drilling as its neighbor Pennsylvania sits across the Delaware with drill pads in the watershed waiting for approval.

Andrea says, "In November of 2010, we created a local chapter of Concerned Citizens, Tusten Concerned Citizens, whose primary focus is initiating and establishing stringent Land Use laws into our municipal zoning ordinances that address Heavy Industrial Use, i.e. gas drilling, to protect the health, safety and welfare of the citizens of the Town of Tusten. The Town of Tusten is working with Helen and David Slottje and the Tusten Concerned Citizens along with its First Saturday of the Month SkyDog Supper Club will be hosting a Democracy School led by Ben Price later this year." In addition to organizing the town hall meeting supper club as a place for community engagement, Andrea and her partner Kevin Vertrees have been organizing collaborative art events, Flow Projects that are celebrations of pure water as their community is threatened by drilling and hydraulic fracturing.

This is the continuation of the story of individuals speaking up when the gas corporations are attempting to control their hometowns and of individual becoming increasingly involved in their local government, collaborating with each other as they face drilling throughout the area.

The following is from Ben Price of the Community Environmental Legal Defense Fund speaking to residents of the Sullivan County Catskills in Eldred, New York. You can read (or hear) Helen Slottje’s part of the talk here. The event was moderated by John Conway.

John Conway: Ben Price, will talk about a little bit different approach. And Ben's approach involves an outright ban, passing a local law that would provide an outright ban on drilling.

Ben Price is the Projects Director of the Community Environmental Legal Defense Fund. Ben coordinates community organizing across Pennsylvania, where over 100 communities have already adopted Legal Defense Fund-drafted laws. He has served as consultant to the Pittsburgh City Council; assisted in drafting Pittsburgh's Protection from Natural Gas Drilling Ordinance; and is working with other communities in both Pennsylvania and New York, as well as Maryland and Ohio, to adopt community rights ordinances that assert the authority of municipalities to protect their community health, safety, welfare, quality of life, and the natural environment by banning industrial activities such as gas extraction. As Projects Director, Ben offers communities free organizing assistance and training for municipal officials and residents for the adoption of local laws.

He also assists with strategic organizing in New England and northern California, and is the First Chair Democracy School lecturer. Ladies and gentlemen, Ben Price.

Ben Price: Thank you, John, and thanks to everybody for being here this morning. I'll tell a little bit more about the Legal Defense Fund in just a second, but before I begin I wanted to say something maybe you may not expect, but I agree with everything that Helen said. I do. That is where we are right now. And I actually do believe that given the state of affairs with New York law, that land use laws are a viable tool in order to actually keep the drilling out. I think that makes sense as a starting point.

I'm here, I guess in a way, to offer a cautionary tale. I think that it behooves you and your communities to engage in precautionary measures in anticipation of what has happened in other states. The Legal Defense Fund opened its doors in 1995, and the plan was to offer free legal services to municipalities and community groups in order to assist them to protect their quality of life, their health, safety and welfare, their environments, because in general it's those small municipalities and towns -- it's the community groups -- that don't have the financial wherewithal to fight the large corporations when they come in and they say, "Here's what we're going to do whether you like it or not." And whether you like it not, sometimes -- as everyone has heard already -- you can sue anybody for anything with one small caveat -- if you've got the cash. And the industries have the money, and in general the municipalities and the people do not.

Our experience early on back in '95 when the Legal Defense Fund opened their doors was pretty typical. We engaged in rather traditional community organizing, which is to say that we assisted community groups and individuals to challenge permits from being issued, to review the applications for permits that would allow for some legal activity -- and by the way, gas drilling in Pennsylvania and in New York, and Ohio and West Virginia and Maryland is legal. It's legal. And it's regulated -- we know that, too.

But the permits are the license to engage in the activity.

What we found was that the state more and more -- the state legislature -- adopted laws wherein they occupied the field of regulation and stripped local governments of the opportunity to regulate industry and the activities they engage in locally. And just to give you an example, the Legal Defense Fund didn't start working with communities on the gas drilling issue. That's become a huge issue. Everywhere I go, the crowds get larger and larger. When we go to municipal meetings and talk to folks, the crowds are getting huge. People are just energized about this issue.

But that's not where we started working. Frankly, we began working in rural communities in Pennsylvania on issues generally having to do with agriculture -- communities that were concerned about the establishment of factory farms as the new way of engaging in agriculture in Pennsylvania. That wasn't seemingly such a big problem back before the mid-1990s. We had about 400 communities -- municipalities in Pennsylvania at the time -- that had ordinances in place -- legal ordinances -- not challenging any existing law, that said that factory farms essentially were excluded. They wanted to support independent family farming.

Unfortunately -- and this is part of the precautionary tale I want to tell -- is that just because you have what looked like strong local authority under your home rule provisions of your constitution doesn't mean they're permanent. And I don't mean that just to scare you. As a Pennsylvanian, I envy your Home Rule law. I think it's great as it stands. It really does afford a degree of local control that the folks in Pennsylvania -- 12-1/2 million of them in over 1,200 municipalities -- wish they could have back.

We have experienced, though, that when industry wants to make it easier to get what they want, they change the laws for us. That's what we experienced. That's why we changed our strategy in terms of what to do in order to combat the industrialization of our communities, and really ... you'll hear me talk about corporations -- I'm not anti-corporation; I actually work for one. It's a nonprofit, but I actually work for one. They're good tools; they're good legal tools. They can also be used in a negative way, just like a lot of legal things can be.

What we experienced beginning in the early 2000s was a transformation of state law that stripped local communities of the authority to say "no" to the industrialization of agriculture ... by the way, to say "no" to mining. We had land use laws under the Municipalities Planning Code -- that's the state code of land use law -- that did not prohibit communities from zoning out mining, and did not prohibit them from zoning out agriculture that was industrialized. The Municipalities Planning Code was amended any number of times, and it's a litany of surrender of local control and Home Rule authority to industry, where the Municipalities Planning Code was amended to disallow local municipal control or regulation of the timber industry, of mining, of water withdrawals, of agriculture, one after another after another, to the point where what we have left in terms of our ability to deal with an industry like gas drilling is, we can regulate the roads and impact on roads. We can attempt to impose conditions in terms of putting up fences and what color paint is used on the drilling rigs so that they blend in with the background.

Doesn't mean we have no local control over gas drilling in Pennsylvania. We can say where they can drill, but not whether or not they can drill -- the idea of zoning being that we still retain the authority to segregate incompatible uses of land, to try to keep the drill rigs away from the swings and the monkey bars in the kids' playground. We can try to do that.

You can separate incompatible uses of land, but you're not allowed to say "no" to a legal use of land. That's where we are in Pennsylvania. I don't want that to be where you come to in New York.

When it comes to what authority and what power we have to protect our health, safety and welfare at the local level, we're up against three main obstacles. The first one is state preemption, which I just talked about briefly, which is where the state decides to adopt state laws, or to amend existing laws that strip that local authority. In New York, as well as in other states, general laws of the state apply to all communities, and if a general law specifically preempts -- in other words, it strips the authority of the municipality -- to say "no" to a particular legal use of land -- and how do we know it's a legal use of land? Well, permits are issued for it. Permits are issued for gas drilling by the State of New York. You have not yet been preempted to adopt local land use laws that have the effect of excluding gas drilling. And I do agree with Helen -- that's a tool you should use. You have it, you should use it. You should, in fact.

Preemption is one of the main obstacles we have to overcome if it's in place. Right now, you don't have preemption of land use in place, but you do have preemption in terms of regulating the industry. State law essentially says, yes, you can in effect preempt it through your land use decisions, but you can't say anything about the process of the extraction. You can't regulate the industrial activity itself. The state has occupied the field of regulation there, and that is to say you are preempted.

But those laws in existence today in New York that say you can stop it through land use are not immutable, and they're not perpetual.

There's another obstacle to local control called "Dylan's Rule," and it's a theory of law that says -- by the way, it's not in the U.S. Constitution; it's not really even in the state constitution -- but it's a tradition of and a theory of law that says municipalities essentially have the same relationship to the state -- the state legislature -- as a child has to a parent -- which is to say that the municipality has no authority of its own and no agency of its own unless the state delegates that power and that authority ... which also means that at any given time the state can withdraw that power or that authority. That's the experience I've been relating to that we've had in Pennsylvania on lots of issues.

By the way, it's also the experience they have in Ohio. In 2005, the state legislature adopted a law dealing with the regulation of oil and gas, and they stripped municipalities of the authority to regulate -- to do anything at the local level that applies to those industries.

We're used to hearing about that horrible term, the "Halliburton loophole." Most of you have heard that, right? It's that horrible thing that they did at the federal level that said this gas industry is exempt from a host of federal laws that purport to protect our environment and our communities -- you know, the Clean Drinking Water Act; the Clean Air Act; the Superfund Act -- things like that.

We don't generally think about the fact that in many states -- and by the way, in New York as well, the industry is also exempt from local control, local regulation in New York, fortunately, as Helen pointed out, except in terms of land use.

But in terms of industrial activities themselves, they are exempt from local laws. I'd just like to question, what does that word "exempt" mean? It means you don't have to obey laws that everybody else does. It means you're above those laws. It means you're exceptional and you have privileges that no one else in the community, the state or the land has. And that's the position of the gas industry in terms of those ostensibly protective laws. Why would they have to be exempt from them? Maybe it's because they couldn't live up to them; maybe it's because they couldn't actually obey them and actually continue to engage in the industrial activities that they want to be involved in.

So, I mentioned preemption and Dylan's Rule, and what I'm getting at now, too, is a third obstacle that we have to actually creating the kinds of communities that we want to live in, and that is corporate supremacy. As individuals, we don't get exemptions from laws that the rest of our neighbors have to obey. That's not a privilege that we as human beings have. But corporations do, and corporations have been recognized by the courts to share protections of the Bill of Rights of the United States Constitution as though they were living human beings. Again, I'm not against corporations -- I think they're actually very useful tools.

Folks who benefit from private for-profit corporations benefit also from the fact that they often have limited liability; that the individuals who benefit from those corporations that engage in activities that in general community majorities find to be harmful -- that those individuals benefitting from those harmful activities are not responsible for the harm. That's the joy of a limited liability.

On top of that, they get an extra scoop of rights to come in to your community as a corporation. As individuals, every member of the board of directors of a corporations has individual constitutional protections. As individuals, every investor in a corporation retains those rights -- not the responsibilities for the harms they inflict using that legal tool of the corporation when they enter your community. They hold on to their rights and they aren't responsible for the actions.

Now, I know you're at a good spot here where you can potentially adopt land use laws to actually prohibit ... keep out the drilling for now. You can't use other types of laws because you have been preempted from doing so. In Pennsylvania and Ohio, in Maryland and West Virginia, communities there have no such comparable Home Rule power through land use laws. So, what do they do and what have they begun to do?

Well, in Pittsburg, which is probably the one community that you may have heard of dealing with it in this way, in a community rights forum ... What they've done is, they adopted a law -- and I'll just describe it in general terms. It's not simply an outright prohibition on gas drilling, although it does prohibit gas drilling. That's not where it starts. We refer to them as "community rights laws" because it starts with a local bill of rights that enumerate rights such as the right to local self-government on issues with direct impact on the community -- the assertion that the state does not have the authority to license corporations to engage in activities that actually violate the rights of the members of the community.

We actually are self-governing people with rights that we retain and have not surrendered, and we're going to act on that premise, and if the state believes we do not have the right to protect our health, safety, welfare, quality of life, natural environment, they'll need to come and take away our rights 'cause we're not going to sit on our hands and act as though we do not have those rights. That's a pretty profound and provocative thing for them to do, I admit it. And they didn't do it lightly. And we don't engage ... The Legal Defense Fund does not engage in the kind of community organizing that we do lightly either.

But when the consent of the governed is denied, and when private interests are licensed to engage in activities against the consent of the governed, we're left with a question of what to do about it, and I think maybe there's about three choices that we can select from, and I mean it sincerely -- it's not up to me to decide for any given community. I have a voice in my own, but not in yours or anyone else's. Which choice your community takes is up to you and your community, and I'm not being sarcastic about it when I go through these three choices, the first one being, you can decide to do nothing.

And even with the strength of your land use laws in New York, the ability to use them to stop the drilling, there will be communities, I dare say, that will decide to do nothing -- they won't pursue that. They may not be convinced. And Helen, I hope you do convince them because I think it would behoove them all to do it, if at minimum to do that. Absolutely.

But some won't do it, and they'll have arguments to say -- and I don't mean ... again, this isn't meant in any judgmental way -- "Well, we're too busy; we're not really that concerned about it." Whatever the reasons are, that is a valid choice. But we're the adults in the room and we're responsible for the outcomes of our decisions, and if we decide to do nothing, and the outcome of our decision is that our communities are destroyed for future generations to live in them and enjoy their natural environment, their drinking water and the rest of it, we are responsible to that choice; we in our communities are responsible for those choices.

The second of three possible decisions we might make is to attempt to use existing structure of law to create the outcomes that we want. We don't want drilling; let's try to use the laws we have, and that means use your land use laws to try and stop the drilling. But you can't use other types of laws; you don't have regulatory authority over the industry in your municipality, so you don't have that option.

What we can try to do is regulate it. In general, that's what we're given. What does it mean to regulate? It doesn't mean to disallow. It means to allow under certain conditions. And so, a community might say, "Well, we're not really going to impose land use laws that have the effect of eliminating the drilling; we're going to allow it in certain places," which means we're going to decide which parts of our municipality to surrender to the industry -- that's a choice. I think doing nothing and using existing law, you have a very strong possibility of getting fracked -- a very strong possibility.

The third option is the one that the Legal Defense Fund has been pursing and advising communities on, and it has to do with acting on the premise that you already have the right to say "no," that you already have the right to protect your community, your families, your kids, your property values, your drinking water -- that those are fundamental rights. It's a crazy thing -- in Pennsylvania we actually have it. It says it right in the Constitution, Article 1, Section 27, that we have a right to clean air, clean water, clean soil, and that the state has the responsibility to protect the resources of the state and to be the steward of those resources for all of Pennsylvania for generations to come. And then the Supreme Court of the state says things like, "However, Article 1, Declaration of Rights -- those rights are actually non-self-executing." I'm not a lawyer, if I didn't mention that, but sometimes they say silly things like that, which is to say, "These rights -- long list of rights -- they're not self-executing."

What does that mean? It means that the state has not created explicit statutory law to tell us how we're allowed to enjoy those rights. I know I'm speaking colloquially; I'm not being precise in my legal language. I engage in community organizing around these issues, and I think it's important for people to understand what it is -- what does it really mean?

And what we're being told is, the right to clean air, clean water and the rest of it -- well, that's protected by the Department of Environmental Protection. The laws and the regulations of the state through that agency -- that's how we can enjoy those rights. And then we look to see what those agencies actually do. They issue permits to industry to engage in activities that the people in our communities are told they have no authority to say "no" to -- and that's how our rights get protected.

What can we do in anticipation of New York going the way of Pennsylvania and Ohio and Maryland and West Virginia? There really are differences among the states in terms of Home Rule authority. About 46 states have some form of Home Rule at the municipal level. Some of it is statutory; some of it's constitutional; some of it is a mix.

In Pennsylvania, in 1968, they amended the state constitution to allow for municipal home rule. Well, we've got quite a few municipalities in Pennsylvania; 67 of them have decided to go Home Rule. Why so few? Because the state legislature has been very busy since 1968 adopting laws that newly preempt Home Rule authority. So, we had statutory municipalities before, and they were being preempted; and now we have Home Rule communities and their local Home Rule authority is being whittled away one after another.

How does that happen? Our experience is that industry has the ear of our legislators. And, for instance, when the DEP talks about their clients, they're talking about the industries that they're charged with assisting to engage in the activities that they permit. It's kind of an upside-down view of what an environmental agency might do.

So, by the way, is the regulatory system of most states, including New York, where when it comes to preemptive power, what they say is, "Here is the maximum amount of protection legally that a municipality will be offered -- that the members of a municipality will be offered by the state." And you would be acting beyond your authority to adopt laws that regulate that industry any more strictly and offer more protection to your community. If we had legislatures who considered the human beings in the state to be their constituents, we might see a regulatory regime that said, "Here is the minimum amount of protection every community must offer its members, and if they so decide, they can impose more strict regulations to protect the health, safety and welfare of their communities." Just the opposite is the case.

What we're suggesting is that communities take seriously their rights -- and members of the communities take seriously the rights. When Pittsburgh adopted their ordinance, they were not the first in Pennsylvania or the first in other states ... By the way, we have worked in communities in New Hampshire, in Maine, in Virginia and elsewhere where local laws have been adopted that stand in the face of state preemption and challenge those laws and say, "The state is acting beyond its authority to deprive the rights of the members of this community by licensing state-chartered corporations to engage in activities that threaten our rights." The ordinances do a couple of other interesting things. They recognize the inalienable rights of natural communities and ecosystems to exist and flourish -- what does that mean? And does it mean that the communities that adopted these ordinances have all gone "enviro," or turned into Druids or something? No, it doesn't mean that.

Most of the communities that have adopted rights-of-nature provisions have been what I would describe as rather conservative, but they understand the real pragmatic reason for doing so. When it comes to protecting your environment -- and yes, we can litigate over anything we want to ... But if you want to sue a corporation for engaging in a harmful activity in your community and you go to court, one of the first things they're going to ask is, "Well, what's your interest in this?" to explore to see if you have standing. Are you actually going to be materially harmed, or have you been materially harmed by this corporate activity? In other words, do you own the land that's been harmed? Has your property value been damaged? Something along those lines. And if the answer is "No, I live on the other side of town but I just didn't want to see our environment destroyed," your case is dismissed.

What if, in your bill of rights, in a community rights ordinance you include a recognition of the rights of ecosystems to exist and flourish, and you further recognize that every member of the community has legal standing to advocate for those rights in a court of law? And then the legal relationship in terms of property is not the relevant question. The question is, "Have these rights been violated?"

One other provision, which is a key one ... Sometimes we're told what we're really interested in is just getting rid of corporate rights, and there's bill of rights protections that corporations have been granted.

We have a provision in the ordinance that says corporations that would violate the prohibitions of this law will not be recognized to have the legal protections of the Bill of Rights and similar protections of state law. Why would we do that? It's not just because we want to be nasty. It's because people in our communities are at disadvantages when lawyers for corporations come in and they say, "We're suing; we're bringing a Section 1983 lawsuit, which is a civil rights lawsuit, on behalf of the civil rights of the corporation that are being violated." It's that "takings" thing. "Takings" means that your Fifth Amendment protections of government not to take private property for public use without just compensation are being violated. And a corporation lawyer comes in and claims, "That's exactly what your municipality's doing to us by adopting a local law that says we can't access our minerals, or we can't exercise the lease, or the permit." That's the type of argument we get.

Nullifying that claim is not about stripping rights from corporations; it's about making sure that the rights of the members of the community are understood to be superior to the privileges of state-chartered corporations -- chartered corporations, and they are chartered by the state legislature in the name of the people. The state cannot turn around, not legitimately, and issue permits to them in a way that would have the effect of violating the rights of the very people who chartered the corporation. It's a Frankenstein model. It makes no sense to allow that to stand, and so we do challenge that.

This is very provocative stuff. We know it. We understand that this isn't for everybody, because it takes a lot to explain it, and I, with 30 minutes quite frankly, have really but scratched the surface.

What would we suggest in terms of New York and where you are? And again, it's back to the cautionary tale, and I think the precautionary measures that I would suggest, we would suggest, which is to say, put in place your land use laws to eliminate the use of land for gas extraction, combined with community rights provisions that recognize that you're doing so not only because you acknowledge the authority of the state which has devolved these powers to you, but also because you understand and embrace the rights of the community to adopt laws and have the effect of governing state-chartered corporations in the name of the people. This is about, I believe, putting in place local laws that anticipate the possibility of losing the one tool you do have right now. I wish you had more tools, because in a self-governing democracy, the people wouldn't simply be allowed one last shot at self-governance through land use; it would actually be a broad spectrum of authority understood and recognized by the state.

There's a lot to this, and if you have further questions, I'm happy to answer them. Thanks.

Conway: Thank you, Ben.

Ben, our first question: "What role, or what impact, if any, would a public health officer in a town or the county or public health law have on gas drilling?" Can public health issues be used in a town ordinance to prohibit gas drilling?

Price: I'm not going to presume to speak on New York law specifically. I'm not an attorney to begin with, but New York law -- I'm familiar with it to the degree I am.

When we talk about a bill of rights and these local ordinances, they're not limited in scope. I mean, if it's a matter of retained rights of the people being enumerated locally, and prohibitions being put in place as Pittsburgh did, the prohibition on gas drilling is not simply a free-floating prohibition. It's put in place, and specifically the language of the law says, "This prohibition is intended to protect the rights enumerated in this ordinance." And so, a right to health and not to have health damaged would seem to be a legitimate jumping-off point for prohibition on drilling.

Conway: Ben, you mentioned the Pennsylvania State Constitution. I'm not sure if you can address this, but, "Does New York have the same right to clean water, land, soil, in our state constitution, and can we enact a ban or a bill of rights at the same time? And once a ban or a bill of rights is enacted, can it be overturned once it's passed?"

Price: To my knowledge, the New York Constitution isn't quite as explicit as Pennsylvania's, but it's not based on Pennsylvania's constitution that these ordinances are being drawn up the way they are. We're not claiming that we get our authority or our rights from Article 1, Section 27 of the Pennsylvania Constitution. That right preexists the Pennsylvania Constitution.

The theory of government, in this country at least, going all the way back to the Declaration of Independence -- it declares that governments are instituted -- what for? -- by the people to defend and protect their rights. And when governments no longer act in that manner, then it is not only the right, but it says the duty of people to alter or abolish it.

So, the rights precede the constitution, and it doesn't matter whether you have that language in the New York Constitution. That's not the question to ask on whether or not you can institute local bills of rights that recognize those rights. Retained rights -- I mean, if you want to look for a place, the Ninth Amendment of the U.S. Constitution talks about unenumerated rights being retained by the people. Unenumerated -- just because there's 10 amendments to the Constitution early on doesn't mean that the listing of those rights is exhaustive. Unenumerated rights are retained by the people. Let's enumerate them and protect them.

Conway: Ben, if corporations are considered a person, as has become prevalent of late, do they have the same protections as a person might expect?

Price: Well, the same and more. And there are specific examples I could give. There are particular amendments to the Constitution that corporate attorneys will claim belong to corporations now. The 14th Amendment was the first one, and it guaranteed equal protection of the law and due process of law. The 14th Amendment was adopted after the Civil War. The 13th Amendment ended slavery, and the 14th Amendment -- at least as I read it, and many folks read it -- was intended to guarantee equal protection of the law and due process of the law to those freed slaves -- and, by the way, to everyone, 'cause it didn't mention that it was just freed slaves.

The courts looked at the word "person" and the second clause of that amendment, and determined in 1886 that the word "person" also referred to corporations as well, and in that particular case, the Santa Clara case, decided that corporations had the 14th Amendment protection of equal protection of the law, which was the foot in the door, and now we see that corporations are recognized to have First Amendment free speech protections -- that was first decided in the Bilotti case of 1978; it wasn't the Citizens United case that actually opened that can of worms; that was just the cherry on top.

You know, Fifth Amendment protections -- wonderful stuff. In 1922, Pennsylvania had a state law on the books that said corporations must leave columns of coal under the ground. They couldn't just strip out all of the coal with the effect of the surface collapsing in, subsidence, destroying surface properties and ponds and having streams disappear, and the rest of it.

Well, Pennsylvania Coal Company went to court and they got a nice decision from the Supreme Court that said, "You know, that's a violation of the Fifth Amendment protections of that corporation under the 'Takings' clause, because making them leave their coal underground -- those pillars of coal -- that's their property. It's stuff they could have harvested and made a profit selling on the market. And so, you can't make them ... Pennsylvania ... you can't make them leave that there." And the state law was overturned.

It's a bizarre thing. Do corporations have the same rights as people? I don't know. I think that in that case, and in many similar cases, in fact the people living on the surface lost their rights and the corporations gained them.

And by the way, it wasn't just the Pennsylvania Coal Company that gained that Fifth Amendment "Takings" protection. It was every corporation in the country. Every time that the U.S. Supreme Court decides to find, to discover, corporations in the U.S. Constitution, the word doesn't appear there, by the way. Every time they discover corporations in the Constitution, that's a discovery for every corporation, not just for the one that goes to court. We don't get such benefits when we get a court decision in general.

And by the way, future lost profits as a property right belonging to corporations -- can you imagine? I'm going to exaggerate a little bit here, but what if you went down to a nearby business, filled out a job application, and said, "I'd like this job," and you got turned down? Imagine trying to sue for the future profits you could have made if they'd have only hired you. Well, it sounds absurd, I know. I think it's absurd that a corporation could, under any guise, say that the gas they have plans to retrieve is something that they can claim a vested property right in under any guise.

Conway: Okay, we're going to call this the last question, and I'm combining a bunch here, Ben, so I'd ask you to try to address this in its entirety as quickly as possible. A number of people expressed kind of a helplessness here. "Are there any actions that citizen groups can take if their townships are all pro-drilling? How does a resident stop a test well from becoming a production well now, and, based on your experience, what is the timeframe it would take to put your community rights provisions into effect?"

Price: The work we do really is not so much about making sure that we stop drilling, just to be honest with you. Our job is to make sure that we attempt to empower community majorities to establish local control to the greatest degree possible.

Having said that, if you have a community majority that is against gas drilling, how long would it take to get an ordinance in place? In general, the process I'm used to in Pennsylvania and elsewhere -- there's usually ... there's a legal process you have to go through of advertising a proposed ordinance at one meeting, and then as soon as possible would be to have a hearing, and then maybe a vote on it at that very meeting. So, a couple of months. But that's a couple of months after you've persuaded your community, "This is the way to go"; after you've secured and persuaded your local officials to vote in the affirmative, assuming you don't have initiative and referendum; and also, assuming that you've got the language in place. We don't simply hand communities, "Here's the finished product," and say, "There it is; go with it."

We engage in a real dialogue with people in the community; find out what it is precisely they want to do. We have some communities, all they want to do is ban drilling -- that's it. Someone'll say, "We want to ban drilling. We also want to ban them from depositing the frack water anywhere in our community. We want to ban them from withdrawing water and using that for the drilling process, even if they don't do it in our community." There are a number of things that we can discuss about what outcome you're looking for -- what the law's going to look for. Length of process -- it varies. The shortest would be a couple of months. That would be real fast, I think.

Sabrina Artel is the creator and host of Trailer Talk, stories from America's kitchen table. Her weekly radio show explores community engagement through conversations about culture, politics, the arts and the environment. To find out more about Trailer Talk's Frack Talk Marcellus Shale Water Project please visit Trailer Talk.

How Greed Destroys America

How Greed Destroys America

Exclusive: New studies show that America’s corporate chieftains are living like kings while the middle class stagnates and shrivels. Yet, the Tea Party and other anti-tax forces remain determined to protect the historically low tax rates of the rich and push the burden of reducing the federal debt onto the rest of society, a curious approach explored by Robert Parry.By Robert Parry

June 28, 2011"Consortium News" -- If the “free-market” theories of Ayn Rand and Milton Friedman were correct, the United States of the last three decades should have experienced a golden age in which the lavish rewards flowing to the titans of industry would have transformed the society into a vibrant force for beneficial progress.

After all, it has been faith in “free-market economics” as a kind of secular religion that has driven U.S. government policies – from the emergence of Ronald Reagan through the neo-liberalism of Bill Clinton into the brave new world of House Republican budget chairman Paul Ryan.
By slashing income tax rates to historically low levels – and only slightly boosting them under President Clinton before dropping them again under George W. Bush – the U.S. government essentially incentivized greed or what Ayn Rand liked to call “the virtue of selfishness.”

Further, by encouraging global “free trade” and removing regulations like the New Deal’s Glass-Steagall separation of commercial and investment banks, the government also got out of the way of “progress,” even if that “progress” has had crushing results for many middle-class Americans.
True, not all the extreme concepts of author/philosopher Ayn Rand and economist Milton Friedman have been implemented – there are still programs like Social Security and Medicare to get rid of – but their “magic of the market” should be glowing by now.

We should be able to assess whether laissez-faire capitalism is superior to the mixed public-private economy that dominated much of the 20^th Century.

The old notion was that a relatively affluent middle class would contribute to the creation of profitable businesses because average people could afford to buy consumer goods, own their own homes and take an annual vacation with the kids. That “middle-class system,” however, required intervention by the government as the representative of the everyman.

Beyond building a strong infrastructure for growth – highways, airports, schools, research programs, a safe banking system, a common defense, etc. – the government imposed a progressive tax structure that helped pay for these priorities and also discouraged the accumulation of massive wealth.
After all, the threat to a healthy democracy from concentrated wealth had been known to American leaders for generations.

A century ago, it was Republican President Theodore Roosevelt who advocated for a progressive income tax and an estate tax. In the 1930s, it was Democratic President Franklin Roosevelt, who dealt with the economic and societal carnage that under-regulated financial markets inflicted on the nation during the Great Depression.

With those hard lessons learned, the federal government acted on behalf of the common citizen to limit Wall Street’s freewheeling ways and to impose high tax rates on excessive wealth.

So, during Dwight Eisenhower’s presidency of the 1950s, the marginal tax rate on the top tranche of earnings for the richest Americans was about 90 percent. When Ronald Reagan took office in 1981, the top rate was still around 70 percent.

Discouraging Greed
Greed was not simply frowned upon; it was discouraged.

Put differently, government policy was to maintain some degree of egalitarianism within the U.S. political-economic system. And to a remarkable degree, the strategy worked.

The American middle class became the envy of the world, with otherwise average folk earning enough money to support their families comfortably and enjoy some pleasures of life that historically had been reserved only for the rich.

Without doubt, there were serious flaws in the U.S. system, especially due to the legacies of racism and sexism. And it was when the federal government responded to powerful social movements that demanded those injustices be addressed in the 1960s and 1970s, that an opening was created for right-wing politicians to exploit resentments among white men, particularly in the South.
By posing as populists hostile to “government social engineering,” the Right succeeded in duping large numbers of middle-class Americans into seeing their own interests – and their “freedom” – as in line with corporate titans who also decried federal regulations, including those meant to protect average citizens, like requiring seat belts in cars and discouraging cigarette smoking.

Amid the sluggish economy of the 1970s, the door swung open wider for the transformation of American society that had been favored by the likes of Ayn Rand and Milton Friedman, putting the supermen of industry over the everyman of democracy.

Friedman tested out his “free-market” theories in the socio-economic laboratories of brutal military dictatorships in Latin America, most famously collaborating with Chile’s Gen. Augusto Pinochet who crushed political opponents with torture and assassinations.

Ayn Rand became the darling of the American Right with her books, such as Atlas Shrugged, promoting the elitist notion that brilliant individuals represented the engine of society and that government efforts to lessen social inequality or help the average citizen were unjust and unwise.

The Pied Piper
Yet, while Rand and Friedman gave some intellectual heft to “free-market” theories, Ronald Reagan proved to be the perfect pied piper for guiding millions of working Americans in a happy dance toward their own serfdom.

In his first inaugural address, Reagan declared that “government is the problem” – and many middle-class whites cheered.

However, what Reagan’s policies meant in practice was a sustained assault on the middle class: the busting of unions, the export of millions of decent-paying jobs, and the transfer of enormous wealth to the already rich. The tax rates for the wealthiest were slashed about in half. Greed was incentivized.

Ironically, the Reagan era came just as technology – much of it created by government-funded research – was on the cusp of creating extraordinary wealth that could have been shared with average Americans. Those benefits instead accrued to the top one or two percent.

The rich also benefited from the off-shoring of jobs, exploiting cheap foreign labor and maximizing profits. The only viable way for the super-profits of “free trade” to be shared with the broader U.S. population was through taxes on the rich. However, Reagan and his anti-government true-believers made sure that those taxes were kept at historically low levels.

The Ayn Rand/Milton Friedman theories may have purported to believe that the “free market” would somehow generate benefits for the society as a whole, but their ideas really represented a moralistic frame which held that it was somehow right that the wealth of the society should go to its “most productive” members and that the rest of us were essentially “parasites.”

Apparently, special people like Rand also didn’t need to be encumbered by philosophical consistency. Though a fierce opponent of the welfare state, Rand secretly accepted the benefits of Medicare after she was diagnosed with lung cancer, according to one of her assistants.

She connived to have Evva Pryor, an employee of Rand’s law firm, arrange Social Security and Medicare benefits for Ann O’Connor, Ayn Rand using an altered spelling of her first name and her husband’s last name.

In 100 Voices: An Oral History of Ayn Rand, Scott McConnell, founder of the Ayn Rand Institute’s media department, quoted Pryor as justifying Rand’s move by saying: “Doctors cost a lot more money than books earn and she could be totally wiped out.” Yet, it didn’t seem to matter much if “average” Americans were wiped out.

Essentially, the Right was promoting the Social Darwinism of the 19^th Century, albeit in chic new clothes. The Gilded Age from a century ago was being recreated behind Reagan’s crooked smile, Clinton’s good-ole-boy charm and George W. Bush’s Texas twang.

Whenever the political descendants of Theodore and Franklin Roosevelt tried to steer the nation back toward programs that would benefit the middle class and demand greater sacrifice from the super-rich, the wheel was grabbed again by politicians and pundits shouting the epithet, “tax-and-spend.”

Many average Americans were pacified by reminders of how Reagan made them feel good with his rhetoric about “the shining city on the hill.”

The Rand/Friedman elitism also remains alive with today’s arguments from Republicans who protest the idea of raising taxes on businessmen and entrepreneurs because they are the ones who “create the jobs,” even if there is little evidence that they are actually creating American jobs.
Rep. Paul Ryan, R-Wisconsin, who is leading the fight to replace Medicare with a voucher system that envisions senior citizens buying health insurance from profit-making companies, cites Ayn Rand as his political inspiration.

A Land for Billionaires
The consequences of several decades of Reaganism and its related ideas are now apparent. Wealth has been concentrated at the top with billionaires living extravagant lives that not even monarchs could have envisioned, while the middle class shrinks and struggles, with one everyman after another being shoved down into the lower classes and into poverty.

Millions of Americans forego needed medical care because they can’t afford health insurance; millions of young people, burdened by college loans, crowd back in with their parents; millions of trained workers settle for low-paying jobs; millions of families skip vacations and other simple pleasures of life.

Beyond the unfairness, there is the macro-economic problem which comes from massive income disparity. A healthy economy is one where the vast majority people can buy products, which can then be manufactured more cheaply, creating a positive cycle of profits and prosperity.

With Americans unable to afford the new car or the new refrigerator, American corporations see their domestic profit margins squeezed. So they are compensating for the struggling U.S. economy by expanding their businesses abroad in developing markets, but they also keep their profits there.
There are now economic studies that confirm what Americans have been sensing in their own lives, though the mainstream U.S. news media tends to attribute these trends to cultural changes, rather than political choices.

For instance, the Washington Post published a lengthy front-page article on June 19, describing the findings of researchers who gained access to economic data from the Internal Revenue Service which revealed which categories of taxpayers were making the high incomes.

To the surprise of some observers, the big bucks were not flowing primarily to athletes or actors or even stock market speculators. America’s new super-rich were mostly corporate chieftains.
As the Post’s Peter Whoriskey framed the story, U.S. business underwent a cultural transformation from the 1970s when chief executives believed more in sharing the wealth than they do today.
The article cites a U.S. dairy company CEO from the 1970s, Kenneth J. Douglas, who earned the equivalent of about $1 million a year. He lived comfortably but not ostentatiously. Douglas had an office on the second floor of a milk distribution center, and he turned down raises because he felt it would hurt morale at the plant, Whoriskey reported.

However, just a few decades later, Gregg L. Engles, the current CEO of the same company, Dean Foods, averages about 10 times what Douglas made. Engles works in a glittering high-rise office building in Dallas; owns a vacation estate in Vail, Colorado; belongs to four golf clubs; and travels in a $10 million corporate jet. He apparently has little concern about what his workers think.
“The evolution of executive grandeur – from very comfortable to jet-setting – reflects one of the primary reasons that the gap between those with the highest incomes and everyone else is widening,” Whoriskey reported.

“For years, statistics have depicted growing income disparity in the United States, and it has reached levels not seen since the Great Depression. In 2008, the last year for which data are available, for example, the top 0.1 percent of earners took in more than 10 percent of the personal income in the United States, including capital gains, and the top 1 percent took in more than 20 percent.
“But economists had little idea who these people were. How many were Wall Street financiers? Sports stars? Entrepreneurs? Economists could only speculate, and debates over what is fair stalled. Now a mounting body of economic research indicates that the rise in pay for company executives is a critical feature in the widening income gap.”

Jet-Setting Execs
The Post article continued: “The largest single chunk of the highest-income earners, it turns out, are executives and other managers in firms, according to a landmark analysis of tax returns by economists Jon Bakija, Adam Cole and Bradley T. Heim. These are not just executives from Wall Street, either, but from companies in even relatively mundane fields such as the milk business.
“The top 0.1 percent of earners make about $1.7 million or more, including capital gains. Of those, 41 percent were executives, managers and supervisors at non-financial companies, according to the analysis, with nearly half of them deriving most of their income from their ownership in privately-held firms.

“An additional 18 percent were managers at financial firms or financial professionals at any sort of firm. In all, nearly 60 percent fell into one of those two categories. Other recent research, moreover, indicates that executive compensation at the nation’s largest firms has roughly quadrupled in real terms since the 1970s, even as pay for 90 percent of America has stalled.”

While these new statistics are striking – suggesting a broader problem with high-level greed than might have been believed – the Post ducked any political analysis that would have laid blame on Ronald Reagan and various right-wing economic theories.

In a follow-up editorial on June 26, the Post lamented the nation’s growing income inequality but shied away from proposing higher marginal tax rates on the rich or faulting the past several decades of low tax rates. Instead, the Post suggested perhaps going after deductions on employer-provided health insurance and mortgage interest, tax breaks that also help middle-class families.

It appears that in Official Washington and inside the major U.S. news media the idea of learning from past presidents, including the Roosevelts and Dwight Eisenhower, is a non-starter. Instead there’s an unapologetic embrace of the theories of Ayn Rand and Milton Friedman, an affection that can pop out at unusual moments.

Addressing a CNBC “Fast Money” panel last year, movie director Oliver Stone was taken aback when one CNBC talking head gushed how Stone’s “Wall Street” character Gordon Gecko had been an inspiration, known for his famous comment, “Greed is good.” A perplexed Stone responded that Gecko, who made money by breaking up companies and eliminating jobs, was meant to be a villain.
However, the smug attitude of the CNBC stock picker represented a typical tribute to Ronald Reagan’s legacy. After all, greed did not simply evolve from some vague shift in societal attitudes, as the Post suggests. Rather, it was stimulated – and rewarded – by Reagan’s tax policies.
Reagan’s continued popularity also makes it easier for today’s “no-tax-increase” crowd to demand only spending cuts as a route to reducing the federal debt, an ocean of red ink largely created by the tax cuts of Ronald Reagan and George W. Bush.

Tea Partiers, in demanding even more cuts in government help for average citizens and even more tax cuts for the rich, represent only the most deluded part of middle-class America. A recent poll of Americans rated Reagan the greatest U.S. president ever, further enshrining his anti-government message in the minds of many Americans, even those in the battered middle class.

When a majority of Americans voted for Republicans in Election 2010 – and with early polls pointing toward a likely GOP victory in the presidential race of 2012 – it’s obvious that large swaths of the population have no sense of what’s in store for them as they position their own necks under the boots of corporate masters.

The only answer to this American crisis would seem to be a reenergized and democratized federal government fighting for average citizens and against the greedy elites. But – after several decades of Reaganism, with the “free market” religion the new gospel of the political/media classes – that seems a difficult outcome to achieve. 

[For more on these topics, see Robert Parry’s Secrecy & Privilege and Neck Deep, now available in a two-book set for the discount price of only $19. For details, click here.]
Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, was written with two of his sons, Sam and Nat, and can be ordered at neckdeepbook.com. His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & ‘Project Truth’ are also available there.

Wreck Havoc on the World

The Painful Collapse of Empire:
How the "American Dream" and American Exceptionalism Wreck Havoc on the WorldWe must tell the truth about the domination that is at the heart of the American Dream so that we may face the brokenness of our world.

By Robert Jensen

June 29, 2011 "Information Clearing House" -- Whether celebrated or condemned, the American Dream endures, though always ambiguously. We are forever describing and defining, analyzing and assessing the concept, and with each attempt to clarify, the idea of an American Dream grows more incoherent yet more entrenched.
The literature of this dream analysis is virtually endless, as writers undertake the task of achieving, saving, chasing, restoring, protecting, confronting, pursuing, reviving, shaping, renewing, and challenging the American Dream. Other writers are busy devouring, recapturing, fulfilling, chasing, liberating, advertising, redesigning, rescuing, spreading, updating, inventing, reevaluating, financing, redefining, remembering, and expanding the American Dream. And let’s not forget those who are deepening, building, debating, burying, destroying, ruining, promoting, tracking, betraying, remaking, living, regulating, undermining, marketing, downsizing, and revitalizing the American Dream.

We are exhorted to awaken from, and face up to, the dream, as we explore the myths behind, crisis of, cracks in, decline of, and quest for the American Dream.
My favorite book title on the subject has to be Andy Kaufman: Wrestling with the American Dream, which explores the comedian’s career “within a broader discussion of the ideology of the American Dream.” According to the book’s publisher, the author “brilliantly decodes Kaufman in a way that makes it possible to grasp his radical agenda beyond avant-garde theories of transgression. As an entertainer, Kaufman submerged his identity beneath a multiplicity of personas, enacting the American belief that the self can and should be endlessly remade for the sake of happiness and success. He did this so rigorously and consistently that he exposed the internal contradictions of America’s ideology of self-invention.” 
As we can see, writers are eager to dive deep into the American Dream to find strikingly original insights, bold new interpretations, previously unexplored nuances. I will take a different approach: I want to skate on the surface and state the obvious. It’s a strategy seldom employed, I believe, because such a reckoning with our past leaves us uneasy about the present and terrified of the future. That strategy leaves us in anguish.
I believe that to be fully alive today is to live with anguish, not for one’s own condition in the world but for the condition of a broken world. My anguish flows not from the realization that it is getting harder for people to live the American Dream, but from the recognition that the American Dream has made it harder to hold together the living world.
So, our task is to tell the truth about the domination that is at the heart of the American Dream so that we may face the brokenness of our world. Only then can we embrace the anguish of the American Dream and confront honestly our moment in history.
The epic dream
James Truslow Adams appears to have been the first to have used the phrase “the American Dream” in print, in his 1931 book The Epic of America. This stockbroker turned historian defined it as “that dream of a land in which life should be better and richer and fuller for everyone.” But he didn’t reduce the dream to materialism and emphasized U.S. social mobility in contrast with a more rigid European class system:

“It is not a dream of motor cars and high wages merely, but a dream of social order in which each man and each woman shall be able to attain to the fullest stature of which they are innately capable, and be recognized by others for what they are, regardless of the fortuitous circumstances of birth or position.”

Adams was, in fact, concerned about the growing materialism of U.S. life, and he wondered about “the ugly scars which have also been left on us by our three centuries of exploitation and conquest of the continent.” He was writing at the beginning of the Great Depression, coming off the go-go years of the 1920s. So, not surprisingly, his list of those problems will sound familiar to us:

“how it was that we came to insist upon business and money-making and material improvement as good in themselves; how they took on the aspects of moral virtues; how we came to consider an unthinking optimism essential; how we refused to look on the seamy and sordid realities of any situation in which we found ourselves; how we regarded criticism as obstructive and dangerous for our new communities; how we came to think manners undemocratic, and a cultivated mind a hindrance to success, a sign of inefficient effeminacy; how size and statistics of material development came to be more important in our eyes than quality and spiritual values; how in the ever-shifting advance of the frontier we came to lose sight of the past in hopes for the future; how we forgot to live,in the struggle to ‘make a living’; how our education tended to become utilitarian or aimless; and how other unfortunate traits only too notable today were developed.”

Yet for all his concerns, Adams believed that the United States could overcome these problems as long as the dream endured, and that led him into the dead end of clichés: “If we are to make the dream come true we must all work together, no longer to build bigger, but to build better.” For Adams, as the book’s title makes clear, the story of America is an epic, and “The epic loses all its glory without the dream.”
But dreams of glory are bound to betray us, and 80 years later the question is whether the story of the United States is an epic or a tragedy. More on that later.
The dream and domination
Adams’ definition of the dream as the belief that “life should be better and richer and fuller for everyone” is rather abstract. One historian’s “short history” of the concept highlights the dreams of religious freedom, political independence, racial equality, upward mobility, home ownership, and personal fulfillment that run through U.S. history, but a concept used by so many people for so many different purposes can’t be easily defined. Rather than try to organize the complexity, I want to focus on what has made the American Dream possible. That much is simple: The American Dream is born of, and maintained by, domination.
By this claim, I don’t mean that the American Dream is to dominate (though many who claim to be living the American Dream revel in their ability to dominate), but rather that whatever the specific articulation of the American Dream, it is built on domination. This is the obvious truth on the surface, the reality that most dreamers want to leave out, perhaps because it leads to a painful question: How deeply woven into the fabric of U.S. society is the domination/subordination dynamic on which this country’s wealth and freedom are based?
First, the American part: The United States of America can dream only because of one of the most extensive acts of genocide in recorded human history. When Europeans landed in the region that was eventually to include the United States, there were people here. Population estimates vary, but a conservative estimate is 12 million north of the Rio Grande, perhaps 2 million in what is now Canada and the rest in what is now the continental United States. By the end of the so-called Indian Wars, the 1900 census recorded 237,000 indigenous people in the United States. That’s an extermination rate of 95 to 99 percent. That is to say, the European colonists and their heirs successfully eliminated almost the entire indigenous population -- or the “merciless Indian Savages” as they are labeled in the Declaration of Independence, one of the most famous articulations of the American Dream. Almost every Indian died in the course of the European invasion to create the United States so that we may dream our dreams. Millions of people died for the crime of being inconveniently located on land desired by Europeans who believed in their right to dominate.
Second, the dream part: Adams pointed out that while this is always about more than money, the idea of getting one’s share of the American bounty is at the core of the American Dream. That bounty did not, of course, drop out of the sky. It was ripped out of the ground and drawn from the water in a fashion that has left the continent ravaged, a dismemberment of nature that is an unavoidable consequence of a worldview that glorifies domination. “From [Europeans’] first arrival we have behaved as though nature must be either subdued or ignored,” writes the scientist and philosopher Wes Jackson, one of the leading thinkers in the sustainable agriculture movement. As Jackson points out, our economy has always been extractive, even before the industrial revolution dramatically accelerated the assault in the 19^th century and the petrochemical revolution began poisoning the world more intensively in the 20^th. From the start, we mined the forests, soil, and aquifers, just as we eventually mined minerals and fossil fuels, leaving ecosystems ragged and in ruin, perhaps beyond recovery in any human timeframe. All that was done by people who believed in their right to dominate.
This analysis helps us critique the naïve notions of opportunity and bounty in the American Dream. The notion of endless opportunity for all in the American Dream is routinely invoked by those who are unconcerned about the inherent inequality in capitalism or ignore the deeply embedded white supremacy that expresses itself in institutional and unconscious racism, which constrains indigenous, black, and Latino people in the United States. The notion of endless bounty in the American Dream leads people to believe that because such bounty has always been available that it will continue to be available through the alleged magic of technology. In America, the dreamers want to believe that the domination of people to clear the frontier was acceptable, and with the frontier gone, that the evermore intense domination of nature to keep the bounty flowing is acceptable.
Of course the United States is not the only place where greed has combined with fantasies of superiority to produce horrific crimes, nor is the only place where humans have relentlessly degraded ecosystems. But the United States is the wealthiest and most powerful country in the history of the world, and the country that claims for itself a unique place in history, “the city upon a hill” that serves as “the beacon to the world of the way life should be,” in the words of one of Texas’ U.S. senators. The American Dream is put forward as a dream for all the world to adopt, but it clearly can’t be so. Some of the people of the world have had to be sacrificed for the dream, as has the living world. Dreams based on domination are, by definition, limited.
Jackson reminds us how these two forms of domination come together in the United States when he asserts, “We are still more the cultural descendants of Columbus and Coronado than we are of the natives we replaced.” Citing the writer Wendell Berry, he points out “that as we came across the continent, cutting the forests and plowing the prairies, we never knew what we were doing because we have never known what we were undoing.”
Dreams based on domination by people over the non-human world are dreams only for the short-term. Dreams based on domination by some people over others are dreams only for the privileged. As Malcolm X put it, “I see America through the eyes of the victim. I don’t see any American dream; I see an American nightmare.”
Justice and sustainability
A world based on domination/subordination is a profoundly unjust world and a fundamentally unsustainable world.
The state of our unjust world: A third of the people on the planet live on less than $2 per day, while half live on less than $2.50 a day. That means at least half the people in this world cannot meet basic expenditures for the food, clothing, shelter, health, and education necessary for a minimally decent life. Concern about this is not confined to radical idealists. Consider the judgment of James Wolfensohn near the end of his term as president of the World Bank:

It is time to take a cold, hard look at the future. Our planet is not balanced. Too few control too much, and many have too little to hope for. Too much turmoil, too many wars, too much suffering. The demographics of the future speak to a growing imbalance of people, resources, and the environment. If we act together now, we can change the world for the better. If we do not, we shall leave greater and more intractable problems for our children.[11]

The state of our unsustainable world: Every measure of the health of the continent -- groundwater depletion, topsoil loss, chemical contamination, increased toxicity in our own bodies, the number and size of “dead zones” in the surrounding oceans, accelerating extinction of species and reduction of bio-diversity -- suggests we may be past the point of restoration. This warning comes from 1,700 of the world’s leading scientists:

Human beings and the natural world are on a collision course. Human activities inflict harsh and often irreversible damage on the environment and on critical resources. If not checked, many of our current practices put at serious risk the future that we wish for human society and the plant and animal kingdoms, and may so alter the living world that it will be unable to sustain life in the manner that we know. Fundamental changes are urgent if we are to avoid the collision our present course will bring about.

That statement was issued in 1992, and in the past two decades we have yet to change course.
These days when someone seeks my support for an idea, project, or institution, I ask whether it makes some contribution to the struggle for justice and sustainability. No one idea, project, or institution can solve our problems, of course, and perhaps even no combination can save us. But I am convinced we must ask this question in all aspects of our lives.
I have concluded that the American Dream is inconsistent with social justice and ecological sustainability. So, I’m against the American Dream. I don’t want to rescue, redefine, or renew the American Dream. I want us all to recognize the need to transcend the domination/subordination dynamic at the heart of the American Dream. If we could manage that, the dream would fade -- as dreams do -- when we awake and come into consciousness.
That’s my principled argument. Now let’s consider two questions about political and rhetorical strategy.
Strategic considerations I: A radical core
A few years ago, sometime around the U.S. invasion of Iraq in 2003, I got a call from a New York Times reporter who was writing a piece about the anti-war movement’s attempt to rally folks around the idea that “peace is patriotic.” I told him I never used that phrase and routinely argued against patriotism -- instead of trying to redefine patriotism, I wanted to abandon the concept as intellectually, politically, and morally indefensible. He was intrigued and asked me to explain. Realize, this was the first, and so far the only, time I have been interviewed by a Times reporter, and so even though I know that newspaper to be a tool of the ruling class, I wanted to make a good impression. First, I pointed out that critiques of patriotism have been made by radicals in the past and that there was nothing all that new in what I had to say. After I explained my argument, he said he couldn’t see a hole in the reasoning but that it didn’t really matter. “No one is ever going to accept that,” he said, and so my position -- no matter how compelling -- didn’t end up in his story.
Perhaps I can take some solace in knowing that he thought my argument was right. But it’s not enough just to be right, of course -- we want to be effective. Is an argument irrelevant if it can’t be communicated widely in the mainstream? Is that the fate of an assault on the idea of an American Dream?
It’s certainly true that the American Dream is a deeply rooted part of the ideology of superiority of the dominant culture, and there is evidence all around us that this ideology is more deeply entrenched than ever, perhaps because the decline of American power and wealth is so obvious, and people are scrambling. But that doesn’t automatically mean that we should avoid radical critiques and play to the mainstream. I believe those critiques are more important than ever.
This conclusion stems from an assessment of the political terrain on which we operate today. This is not a mass-movement moment, not a time in which large numbers of Americans are likely to engage in political activity that challenges basic systems of power and wealth. I believe we are in a period in which the most important work is creating the organizations and networks that will be important in the future, when the political conditions change, for better or worse. Whatever is coming, we need sharper analysis, stronger vehicles for action, and more resilient connections among people. In short, this is a cadre-building moment.
Although for some people the phrase “cadre-building” may invoke the worst of the left’s revolutionary dogmatism, I have something different in mind. For me, “cadre” doesn’t mean “vanguard” or “self-appointed bearers of truth.” It signals commitment, but with an openness to rethinking theory and practice. I see this kind of organizing in some groups in Austin, TX, where I live. Not surprisingly, they are groups led by younger people who are drawing on longstanding radical ideas, updating as needed to fit a changing world. These organizers reject the ideology that comforts the culture. The old folks -- which I define as anyone my age, 52, and older -- who are useful in these endeavors also are willing to leave behind these chauvinistic stories about national greatness.
To openly challenge the American Dream is to signal that we are not afraid to (1) tell the truth and (2) keep working in the face of significant impediments. This kind of challenge speaks to those who are hungry for honest talk about the depth of our problems and are yearning to be part of a community that perseveres without illusions. That isn’t a majority, maybe not yet a significant minority, but those people have the resolve that we will need.
Back to the patriotism critique: Despite the popularity of the “peace is patriotic” bumper stickers, I have continued to offer my argument against the concept of patriotism, and whenever I speak about it in a lecture, people tell me that it was helpful to hear the position articulated in public. Over and over, on this and other issues, I hear people saying that they have had such thoughts but felt isolated and that hearing the critique in public shores up their sense that they are not crazy. Perhaps these kinds of more radical analyses don’t change the course of existing movements, but they help bolster those who are at the core of the more radical movements we need, and they help us identify each other.
Strategic considerations II: Engagement
Although a radical critique of the American Dream isn’t likely to land in the New York Times, we shouldn’t ignore the ways we can use such arguments for outreach to liberal, and even conservative, communities. Once again, an example about patriotism: I have had conversations with conservative Christians, who typically are among the most hyper-patriotic Americans, in which I challenged them to square that patriotism with their Christian faith. Isn’t patriotism a form of idolatry? I can’t claim to have converted large numbers to an anti-empire/anti-capitalist politics. But as the evangelicals say, we sometimes make progress one by one, from within. Framing questions in a way that forces people to see that conventional politics is at odds with their most deeply held moral principles is a potentially effective strategy. It doesn’t always work -- we humans are known for our ability to hold contradictory ideas -- but it is one resource in the organizers’ toolkit.
So, we might consider critiquing the American Dream by contrasting it with another widely embraced idea, the Golden Rule or the ethic of reciprocity, which says we should treat others as we would like to be treated. That principle shows up in virtually all religious teachings and secular philosophy. In Christianity, Jesus phrased it this way in the Sermon on the Mount:

[12] So whatever you wish that someone would do to you, do so to them; for this is the law and the prophets.
[Matt. 7:12]

One of the best-known stories about the great Jewish scholar Hillel from the first century BCE concerns a man who challenged him to “teach me the whole Torah while I stand on one foot.” Hillel’s response: “What is hateful to you, do not do to your neighbor. That is the whole Torah, while the rest is the commentary thereof; go and learn it.”
This is echoed in the repeated biblical command, in the Hebrew Bible as well as the New Testament, to “love thy neighbor as thyself.” [Lev. 19:18] In Islam, one of the Prophet Muhammad’s central teachings was, “None of you truly believes until he loves for his brother what he loves for himself.” In secular Western philosophy, Kant’s categorical imperative is a touchstone: “Act only according to that maxim whereby you can at the same time will that it should become a universal law.”
On the surface, the American Dream of success for all appears to be an articulation of the Golden Rule, of equal opportunity for all. When I suggest that the two ideas are, in fact, in opposition, it gives me a chance to make the case that the Dream is based on domination and, therefore, a violation of that core principle. How can we reconcile our commitment to an ethic of reciprocity while endorsing a vision of society that leads to an unjust and unsustainable world? How can we face the least among us today, and our descendants tomorrow, knowing we turned away from the moral commitments we claim to be most dear to us? A critique of the American Dream can open up that conversation.
Telling the tale: Epic or tragic hero?
The American Dream typically is illustrated with stories of heroes who live the dream. But the larger story of American Dream casts the United States itself as the hero on a global stage. The question we might ask, uncomfortably: Is the United States an epic hero or a tragic one?
Literature scholars argue over the definition of the terms “epic” and “tragedy,” but in common usage an epic celebrates the deeds of a hero who is favored by, and perhaps descended from, the gods. These heroes overcome adversity to do great things in the service of great causes. Epic heroes win. 
A tragic hero loses, but typically not because of an external force. The essence of tragedy is what Aristotle called “hamartia,” an error in judgment made because of some character flaw, such as hubris. That excessive pride of the protagonist becomes his downfall. Although some traditions talk about the sin of pride, most of us understand that taking some pride in ourselves is psychologically healthy. The problem is excessive pride, when we elevate ourselves and lose a sense of the equal value of others.
This distinction is crucial in dealing with the American Dream, which people often understand in the context of their own hard work and sacrifice. People justifiably take pride, for example, in having worked to start a small business, making it possible for their children to get a college education, which is one common articulation of the American Dream. I can tell you a story about a grandfather who emigrated from Denmark and worked hard his whole life as a blacksmith and metal worker, about parents who came from modest circumstances and worked hard their whole lives, about my own story of working hard. That story is true, but also true is the story of domination that created the landscape on which my grandfather, my parents, and I have worked. Pride in work turns to hubris when one believes one is special for having worked, as if our work is somehow more ennobling than that of others, as if we worked on a level playing field.
When we fall into hubris individually, the consequences can be disastrous for us and those around us. When we fall into that hubris as a nation -- when we ignore the domination on which our dreams are based -- the consequences are more dramatic. And when that nation is the wealthiest and most powerful in the world, at a time in history when the high-energy/high-technology society is unraveling the fabric of the living world, the consequences are life-threatening globally.
Not to worry, some say: After all, other empires have come and gone, other species have come and gone, but the world endures. That flippant response glosses over two important considerations. First, empires cause immense suffering as they are built and as they decline. Second, the level of human intervention into the larger world has never been on this scale, so that the collapse of an empire poses new risks. To toss off these questions is to abandon one’s humanity.
To face this honestly, we need to recognize just how inadequate are our existing ideas, projects, and institutions. Quoting the late geographer Dan Luten, Jackson reminds us:

“[Most Europeans] came as a poor people to a seemingly empty land that was rich in resources. We built our institutions with that perception of reality. Our political institutions, our educational institutions, our economic institutions -- all built on that perception of reality. In our time we have become rich people in an increasingly poor land that is filling up, and the institutions don’t hold.”

Developing new institutions is never easy. But it will be easier if we can abandon our epic dreams and start dealing the tragic nature of circumstances.
The end of the epic, for us all
To conclude I want to return to the words of our first American Dreamer, James Truslow Adams: “The epic loses all its glory without the dream.”
Glory is about distinction, about claiming a special place. The American Dream asserts such a place in history for the United States, and from that vantage point U.S. domination seems justified. The future -- if there is to be a future -- depends on us being able to give up the illusion of being special and abandon the epic story of the United States.
It is tempting to end there, with those of us who critique the domination/subordination dynamic lecturing the American Dreamers about how they must change. But I think we critics have dreams to give up as well. We have our epics of resistance, our heroes who persevere against injustice in our counter-narratives. Our rejection of the idea of the American Dream is absorbed into the Dream itself, no matter how much we object. How do we live in America and not Dream?
In other words, how do we persevere in a nightmare? Can we stay committed to radical politics without much hope for a happy ending? What if we were to succeed in our epic struggle to transcend the American Dream but then find that the American Dream is just one small part of the larger tragedy of the modern human? What if the task is not simply to give up the dream of the United States as special but the dream of the human species as special? And what if the global forces set in motion during the high-energy/high-technology era are beyond the point of no return?
Surrounded by the big majestic buildings and tiny sophisticated electronic gadgets created through human cleverness, it’s easy for us to believe we are smart enough to run a complex world. But cleverness is not wisdom, and the ability to create does not guarantee we can control the destruction we have unleashed. It may be that no matter what the fate of the American Dream, there is no way to rewrite this larger epic, that too much of the tragedy has already been played out.
But here’s the good news: While tragic heroes meet an unhappy fate, a community can learn from the protagonist’s fall. Even tragic heroes can, at the end, celebrate the dignity of the human spirit in their failure. That may be the task of Americans, to recognize that we can’t reverse course in time to prevent our ultimate failure, but that in the time remaining we can recognize our hamartia, name our hubris, and do what we can to undo the damage.
That may be the one chance for the United States to be truly heroic, for us to learn to leave the stage gracefully.
[A version of this essay was delivered at MonkeyWrench Books in Austin, TX, on February 10, 2011.
Robert Jensen is a journalism professor at the University of Texas at Austin and board member of the Third Coast Activist Resource Center. His latest book is 'All My Bones Shake: Radical Politics in the Prophetic Voice' (Soft Skull Press). He is also the author of 'Getting Off: Pornography and the End of Masculinity' (South End Press)