The Fugitive Corporations Clause
jfnbl at earthlink.com
Sat Jun 24 09:45:19 PDT 2006
I suppose another rule of thumb is that the first one to mention Marx
loses; but you don't throw out the baby with the bathwater; or the
dialectic with the dictatorship.
Mr. Curtis quoted Weaver from A Call to Action: "In the very midst of
the struggle for the overthrow of the slave oligarchy, our
institutions were assailed by another foe mightier than the former,
equally cruel, wider in its field of operation, infinitely greater in
wealth, and immeasurably more difficult to control. ... It will be
readily understood that we allude to the sudden growth of corporate
power...." In fact, I think they are of a piece in the context of
Hegel's dialectic -- the process of change by force of contradiction
-- rescued from abstraction by Marx's dialectical materialism, a
reductionist application of the dialectic process to explain/dictate
social and economic change/progress.
One can hardly imagine a stronger contradiction than capital's
ownership of human labor in fee simple; nor a more "material"
dialectic process than the the Civil War; nor more thoroughgoing
economic and social change than was wrought by the application of the
dialectic process upon that contradiction. But as with Hegel's
dialectical idealism, which served the unreachable "Absolute Idea,"
the process of dialectical materialism is in constant motion. In the
words of the English physicist and philosopher David Bohm:
"In nature nothing remains constant. Everything is in a perpetual
state of transformation, motion, and change. However, we discover
that nothing simply surges up out of nothing without having
antecedents that existed before. Likewise, nothing ever disappears
without a trace, in the sense that it gives rise to absolutely
nothing existing at later times. This general characteristic of the
world can be expressed in terms of a principle which summarises an
enormous domain of different kinds of experience and which has never
yet been contradicted in any observation or experiment, scientific or
otherwise; namely, everything comes from other things and gives rise
to other things."
The economic and social change that followed the resolution of the
Slave Question, revealed (unleashed?) the broader, if softer,
contradiction of capital and labor in the growth of the economy
spurred by the 14th Amendment and expansion of Commerce Clause
authority -- what Weaver described as "the growth of corporate power"
-- which was met by the dialectic process manifested in the growth of
the labor movement, and workplace regulation from child-labor laws to
The contradiction persists, and the dialectic process still insists
upon a "perpetual state of transformation, motion, and change,"
evidenced by the export of jobs and the import of "guest labor."
Nothing reveals the perpetuality of the dialectical materialism that
drives (or is driven) by the capital-labor contradiction so much as
the McCain-Kennedy guest labor legislation, which at once
accommodates immigrant labor -- entry visas and the carrot of
citizenship; protects the U.S. citizen labor-force -- the use of
guest labor as strike-breakers is unlawful; and finally leaves
Capital with the upper hand -- guest labor status depends on employer
sponsorship and continued employment, insuring that they are
undemanding, compliant and cheap. You have to wonder whether the cost
of housing and feeding their slaves might more conveniently, and just
as effectively, been paid out as a wage, leaving underpaid laborers
to fend for themselves unless they "choose" to live in
employer-provided substandard housing.
I agree with Eugene that the comparison of Roberts to Taney is at
least churlish if not contemptuous, but a lot of people are going to
be surprised if he turns out to be on the side of labor in the cases
At 10:35 PM -0400 6/23/06, M. Sean Fosmire wrote:
>In arguments on constitutional law issues, a good rule of thumb is -
>stop me if you've heard this before - the first one to mention an
>analogy to Dred Scott loses.
>On 6/20/06, Volokh, Eugene
><<mailto:VOLOKH at law.ucla.edu>VOLOKH at law.ucla.edu> wrote:
>"If Roberts ever gains a reliable fifth vote, he and his colleagues will
>do as much as they can to protect corporations as Taney did to protect
> Can someone elaborate a little on this? Would the claim be that
>the Justices would broaden the rights to apprehend fugitive
>corporations? That they would hold (not very controversially) that an
>attempt to take away a corporation's property leads to constitutional
>scrutiny? That each corporation would be counted as 3/5 of a person for
>purposes of apportionment? That they would stymie the non-existent
>corporation abolitionist movement? That they would protect corporate
>free speech rights, in a way that Justice Taney might have -- quite
>correctly -- protected slaveowners' free speech rights, had the issue
>been even around for him then?
> Seriously, in what academic way -- as opposed to polemical way,
>or a way of expressing loathing or contempt towards the conservatives on
>the Court -- is this analogy sound or even meaningful?
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