The Fugitive Corporations Clause

[J. Noble]

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 
OSHA.

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 
that matter.

John Noble

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
>slavery. "
>
>        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?
>
>        Eugene
>
>
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