Lochnerized: Corporations have Constitutional Rights. Unions? Not So Much

[xchrom]

http://www.commondreams.org/view/2013/06/21-4



When judicial rulings create law, it’s commonly known as judicial activism."Lochnerizing" is when the courts invalidate democratically enacted laws while granting corporations constitutional rights. In a 1905 Supreme Court case, Lochner v. New York, the Court struck down a New York state law that limited the amount of hours a baker could work in a day. The Court decided the law was a violation of the constitutional liberty of contract between two “persons:” the baker and the corporation for which he worked. In so doing, the Justices assumed they knew better what was good for New York than New Yorkers did, while granting corporations constitutional rights, thus Lochnerizing the law.

For the next thirty years, corporate lawyers successfully worked to undermine laws and regulations passed to protect workers through a reinterpretation of the 14th and 5th amendments, arguing that corporations are people with constitutional rights. This period is known as the Lochner era, and its history is one of the specific reasons we have a modern labor movement today. It also demonstrates the very reason why just overturning Citizens United--as opposed to abolishing all corporate constitutional rights--is clearly not enough to reinvigorate democracy. Corporations should be subordinate and accountable to the people--not the other way around.

On May 7th, the New York Times reported that a Federal Appeals Court struck down a National Labor Relations Board (NLRB) rule that required most corporations to post a poster with information informing workers of their right to form or join a union, to strike, to bargain collectively and to organize to improve working conditions. The court referenced previous First Amendment rulings, which prohibited government from telling people what they can and cannot say. In West Virginia State Board of Education v. Barnette, the Court correctly held that the First Amendment’s free speech clause protected students from being forced to salute the American flag and say the Pledge of Allegiance in school. And, in Pacific Gas and Electric Co. v. the Public Utilities Commission, the Court decided PG&E, a utility corporation, was not required to use space on their billing envelope in order to encourage consumers to use less energy. Citing these and other cases, the court decided that the NLRB rule violated the free speech right of the corporation not to speak and that the rule also violated a federal law that prevents the board from “punishing” a corporation for “expressing its views,” so long as the statements are not threats of retaliation or force against workers. A corporation’s failure to post the notice would have been considered an unfair labor practice had that court not decided that the NLRB would be acting illegally by “punishing” (issuing fines) a corporation for “making a statement,” in this case, for refusing to post the NLRB poster.

Gleeful about the court’s corporate friendly ruling the National Association of Manufacturers (NAM) called the ruling “an important victory in the fight against an activist NLRB and its aggressive agenda.” NAM pronounced to the New York Times, “The poster rule is a prime example of a government agency that seeks to fundamentally change the way employers and employees communicate. The ultimate result of the NLRB’s intrusion would be to create hostile work environments where none exist”

[SoCalDem]

1. Corporations are formed to protect wealth..unions to protect workers

In our current society, wealth is good & workers are just greedy bastards

[Catherina]

2. John Locke, "the pursuit of life, liberty and property"

We're right where we were meant to be all along.

All you have to do is dig a little deeper into the *happiness* part. Look at the Virgina Statement of Rights for an example

That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

Who, what better to acquire and possess property better than a corporation? This is where our constitution needs to be put to a people's referendum so it can move into the 21st century by addressing social rights such the right to housing, employment, and health care. And the right to basic human needs such as not-for-profit water and fair wages.

We need a constitution in plain modern English that doesn't need constitutional lawyers to interpret and puts people over property.

Without that, we can only expect more of this.