Long before the Civil War, black abolitionists shared the consensus that violence would be necessary to end slavery. Unlike their white peers, their arguments were about when and how to use political violence, not if.
Reviewing “Force and Freedom: Black Abolitionists and the Politics of Violence,” by Kellie Carter Jackson. University of Pennsylvania Press. Featured image: Mabel and Robert Williams, advocates and practitioners of armed self-defense, a longtime tradition in the Black community, during the civil rights movement.
Although Thomas Jefferson opined to James Madison in 1787 “that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical,” he did not have in mind a rebellion by his own forced laborers at Monticello. In fact, when the Second Amendment was drafted two years later, it was intentionally Janus-faced: it aimed to preserve the fruit of U.S. rebellion by arming citizens against an English invasion, even as it also empowered local militias to squash Native and slave rebellions.
The planter class understood that enslavement required complete dominance, including a monopoly on violence. South Carolina’s 1739 Stono Rebellion still loomed large in their memories: enslaved Kongolese warriors had raided guns and ammunition from a local store and killed more than two dozen whites before being defeated. And in 1791, the ink barely dry on the Constitution, Haiti erupted like Mount Vesuvius and challenged the dominion of slavocracy throughout the Americas. The brutally shrewd U.S. leaders realized that slave rebellions were always possible and that firearms had to be kept out of the hands of the enslaved.
Blacks understood this too: slavery was done through violence and would only be ended through violence. Enslaved men and women on the German Coast of Louisiana (today the East Bank of greater New Orleans), for example, inspired by The Declaration of the Universal Rights of Man, sought to emancipate themselves in 1811 by marching toward New Orleans with agricultural tools repurposed as military weapons. Though unsuccessful, they knew that the only certain way to destroy the institution of slavery was to destroy the people who owned their bodies. In a different sort of way, it is a view that was also held by black revolutionaries, in the United States and abroad, in the twentieth century.
Kellie Carter Jackson’s brilliant new Force and Freedom constructs a bridge between these two moments—between the slave rebellions of the early Republic and the armed self-defense and revolutionary violence of twentieth-century black radicals—by filling in the less familiar history of how nineteenth-century abolitionists articulated their support for black armed self-defense and political violence. Her book stands well alongside other recent histories, such as Richard Blackett’s The Captive’s Quest for Freedom: Fugitive Slaves: Fugitive Slaves, the 1850 Fugitive Slave Law, and the Politics of Slavery (2017); Martha Jones’s Birthright Citizens: A History of Race and Rights in Antebellum America (2018); and, Manisha Sinha’s The Slave’s Cause: A History of Abolition (2016). Like these, Carter Jackson places African Americans centrally as agentive in shaping the United States in the mid-nineteenth century. Moreover, her book serves as a kind of prequel to histories of armed resistance during the civil rights era, including Charles Cobb, Jr.’s This Nonviolence Stuff Will Get You Killed: How Guns Made the Civil Rights MovementPossible (2014), Lance Hill’s The Deacons of the Defense: Armed Resistance and the Civil Rights Movement (1964), and Akinyele Omowale Umoja’s We Will Shoot Back: Armed Resistance in the Mississippi Freedom Movement (2013). These works vividly describe how armed self-defense was used in discrete locales in Alabama, Louisiana, and Mississippi to advance democratic freedoms, in a militaristic forerunning of Oakland’s Black Panther Party.
What sets Carter Jackson’s book apart as both unique and challenging is her focus on how nineteenth-century black women and men specifically used and thought about political violence as a tool in defense of themselves. In this way, Carter Jackson shows how they—with varying degrees of fretfulness—muddled distinctions between small acts of private armed self-defense and more expressly political forms of violence. Her book therefore helps us to also better understand historical continuities between black perspectives on revolutionary violence in the early Republic and the era of civil rights.
Long before the National Rifle Association (NRA) came in to being, Americans of African descent understood the need for arms to protect themselves. They lived in a slaveholding society where escapees and free people were daily jeopardized by slavery’s federal statutory enforcements. The original Fugitive Slave Clause of the Constitution (Art. IV, § 2) stated:
No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labour may be due.
This clause in practice deprived alleged runaways of anything like due process. It placed bounties on the heads of fugitives and was frequently a justification for the kidnapping of the freeborn and manumitted. Thus, while the Constitution ostensibly protected individual liberties, it also codified the coercive force necessary to keep enslavement intact. This is why abolitionist William Lloyd Garrison vehemently charged that the Constitution was “the source and parent of all the other atrocities—‘a covenant with death, and an agreement with hell.’”
It would of course eventually take violence to terminate this “covenant with death”—indeed, the deaths of over half a million Americans. All subsequent generations have sought to better understand the precise course that led to the Civil War, and for much of that time, the perspectives of whites on both sides, including white abolitionists such as Garrison, have dominated historical inquiry. Until quite recently, very little had been written about how black communities, enslaved, manumitted, and freeborn, thought about the politics of violence. Just what did autonomy and political freedoms mean to them? How precious was it to protect? How did their communities actively defy the laws that protected slavery?
Force and Freedom dives into the debates among disparate communities of free and enslaved people about when and how to use political violence. Contrary to Kanye West’s bizarre notion that slavery was “a choice,” blacks frequently fought their enslavement by whatever means available to them, including arms, and theorized openly about the salutary nature of political violence. Carter Jackson begins with freeborn abolitionist David Walker’s 1829 publication of his Appeal. The Appeal was a riotous Molotov cocktail. It radically called for slavery’s destruction. Walker’s flammable prose set planters on edge:
The whites want slaves, and want us for their slaves, but some of them will curse the day they ever saw us. As true as the sun ever shone in its meridian splendor, my colour will root some of them out of the very face of the earth. They shall have enough of making slaves of, and butchering, and murdering us in the manner which they have.
Two year after Walker published his clarion call for violent self-manumission, a version of it was attempted by the men and women who organized alongside Nat Turner in South Hampton County, Virginia. Turner’s band attempted to annihilate slaveowners and with them enslavement itself. Turner and Walker were both inspired by Haiti’s success with the violent and complete eradication of enslavement.
Following in the footsteps of Eugene Genovese’s influential Roll, Jordan, Roll: The World the Slaves Made (1974), Carter Jackson offers further evidence that there was never such a thing as a negotiated acquiescence among U.S. slaves to the condition of their enslavement. But whereas Genovese argued that the numerical size of the enslaved population in the United States limited mass rebellions, Carter Jackson demonstrates that the U.S. freeborn population continuously fostered armed rebellion and that political violence was always a widespread topic of conversation among both enslaved and free blacks. And she connects armed actions, debates, and public conversations together to demonstrate a growing collective radicalism among black abolitionists.
Between 1830 and the start of the Civil War, freeborn blacks and former slaves collectively asserted their political freedoms in increasingly direct and forceful ways. By then, black abolitionist had arrived at a loose consensus that slavery’s systemic violence would require systemic retaliatory violence if it were to be destroyed. In other words, Carter Jackson shows that when and how to use political violence—rather than if—was the persistent topic of debate, and the answer was always a moving target, with varied opinions among abolitionists. Abolitionists of all stripes faced dangers, but black abolitionists faced more dangers. So they debated questions such as: What were the relative political advantages of various ways of deploying violence? When was the time to skirt an escapee across the Canadian border, when to raid a jail to rescue a fugitive, and when to have a shootout with slavecatchers?
A missing component in Force and Freedom is the religious context for abolitionists’ discussion of both moral suasion and armed violence. Many of the black abolitionists discussed by Carter Jackson based their ideas upon their black Protestantism. We must take seriously, for example, Frederick Douglass’s foray into becoming Methodist clergy, as well as Frances Ellen Watkins Harper’s and Harriet Tubman’s spiritual motivations for freedom. Though she writes of Henry Highland Garnet’s “Call to Rebellion” speech at the 1843 Negro Convention, Carter Jackson does not mention his “unflinching Calvinist ethics” that framed his understanding of human liberty. My point, borrowing from an unpublished paper by historian James Bratt on Garnet’s ethic of self-defense, is that there were many ways that political violence was understood by abolitionists, and religion influenced them all. My criticism here is aimed less at Carter Jackson than at U.S. cultural studies in general, which tends to insufficiently explore how religion illuminates African American history. In this case, religion motivated some people to armed insurrection—included Nat Turner—even as it informed broader conversations about whether political violence was justifiable, and, if so, when. Radical white abolitionist John Brown’s last words during his 1859 sentencing for trying to capture the federal Armory at Harpers Ferry, Virginia, testifies to the religiosity that prevailed:
This court acknowledges, as I suppose, the validity of the law of God. I see a book kissed here which I suppose to be the Bible, or at least the New Testament. That teaches me that all things whatsoever I would that men should do to me, I should do even so to them. It teaches me, further, to ‘remember them that are in bonds, as bound with them.’ I endeavored to act up to that instruction. I say, I am yet too young to understand that God is any respecter of persons. I believe that to have interfered as I have done as I have always freely admitted I have done in behalf of His despised poor, was not wrong, but right. Now, if it is deemed necessary that I should forfeit my life for the furtherance of the ends of justice, and mingle my blood further with the blood of my children and with the blood of millions in this slave country whose rights are disregarded by wicked, cruel, and unjust enactments, I submit; so let it be done!
Force and Freedom would have also been enriched by a sustained engagement with Cedric J. Robinson’s argument, in Black Movementsin America (1997), that freedom meant slightly different things among those who were enslaved and those who had been born free. For Robinson, this meant that views about the aims of force could be sorted into class tiers: a privileged one—mainly what is covered in Carter Jackson’s history—which aimed for a use of violence that would perfect rather than abolish the existing order; and one held among the masses, who saw little worth preserving and hoped for the violence of a cleansing flood. Whether or not Robinson was absolutely right in his assessment is a matter of debate, but he was correct that the sometimes-uneasy dialogue between the freeborn and the enslaved shaped the terrain upon which the black politics of the Civil War and post-Emancipation eras have played out.
Nonetheless, Carter Jackson’s rich history stands as evidence that, whatever differences of opinion existed between freeborn and enslaved blacks, their views were more similar to each other’s than they were to those of even many abolitionist whites. John Brown notwithstanding, as W. E. B. DuBois noted in Black Reconstruction in America (1935), most whites—including abolitionists—were terrified of the idea of armed African Americans:
Arms in the hands of the Negro aroused fear both North and South. . . . But, it was the silent verdict of all America that Negroes must not be allowed to fight for themselves. They were, therefore, dissuaded from every attempt at self-protection or aggression by their friends as well as their enemies.
And that has largely remained the case, as Robert F. Williams noted in 1962 in Negroes with Guns:
When people say that they are opposed to Negroes ‘resorting to violence’ what they really mean is that they are opposed to Negroes defending themselves and challenging the exclusive monopoly of violence practiced by white racists.
This is perhaps most dramatically embodied by the NRA’s persistent silence on the issue of black gun ownership. Williams directly challenged the Southern Christian Leadership Conference (SCLC) and Congress on Racial Equality’s reliance on nonviolent protest as, in effect, a form of false consciousness. And set within this genealogy, it becomes clear that Malcolm X’s speeches on armed self-defense were not an aberration, but in keeping with a long tradition.
In James McBride’s 2013 National Book Award–winning novel The Good Lord Bird, Onion, the chief protagonist, offers this observation of John Brown:
He knowed what he wanted to do. But as to the exactness of it—and I knowed many has studied it and declared this and that and the other on the subject—Old John Brown didn’t know exactly what he was gonna do from sunup to sundown on the slavery question.
I draw this quote in to return to the point that there is a fundamental difference between acts of armed self-defense and revolutionary violence to overthrow a state. Here a distinction must be made—and although black radical abolitionists were not always fully transparent about the distinction in their public writing and speaking, they were certainly attentive to it in private. John Brown’s plan to capture the arsenal at Harpers Ferry would have come nowhere close to hobbling the U.S. government; he would have needed to control the mass manufacturing of weapons. This is why black abolitionists he attempted to recruit, including Frederick Douglass, were so cautious about his plan. They feared, with varying degrees of consternation, that attacking the state might bring even more hell into their lives. Small acts of armed resistance in the cause of freedom were one thing, full-scale war was another.
Brown’s raid, however, anticipated—and likely sped—the nation’s unraveling over enslavement. The dam, which black abolitionists had steadily tried to crack, finally broke. And when it burst, 600,000 people lay dead. Carter Jackson’s book does not consider this question of scale and cost, but it is one that we as democratic denizens must always keep in mind as we critically think through the levels of armed resistance we are willing to engage in freedom’s name.
Randal Maurice Jelks is an awarding winning Professor of American Studies and African and African American Studies at the University of Kansas. His most recent book is Faith and Struggle in the Lives of Four African Americans: Ethel Waters, Mary Lou Williams, Eldridge Cleaver, and Muhammad Ali. This piece has been republished here with permission.
February 7th updates from Unist’ot’enCamp and Gidimten:
The RCMP raid continues today as militarized, heavily-armed police backed up with K9 dogs, heavy equipment, and helicopters move further into Unist’ot’en territory. As we write this federal police are currently raiding the Gidimt’en checkpoint at 44km.
6:15pm: We are hearing that 30 RCMP are surrounding #Wetsuwetsuweten Hereditary Chiefs and supporters at 27KM who have blocked the road. Among them, Dini’ze Smogelgem, Dini’ze Dsta’hyl, and Tsake’ze Sleydo’.
Everything is quiet at @Gidimten checkpoint. Those in the cabin no longer see or hear police. It seems like the majority of the force has headed out and at least 15 RCMP have headed to 27km. The tower is still standing. The road is still blocked.
Denzel Sutherland-Wilson from the Gitxsan nation was arrested and removed from @Gidimten tower earlier today. Only those in Chief Woos’ cabin remain. The Gitxsan are the oldest allies of the #Wetsuweten.
3:45pm:#RCMP are now blocked in on the forest service road at the 27km mark after people parked several vehicles sideways — preventing vehicles from passing (this is the route out to Houston) #Wetsuweten. RCMP visibly frustrated at this additional barrier.
3:15pm:Anne Spice has been taken down from the tower. One person remains on top of the tower. Legal observers, @GitxsanJt, and a documentary filmmaker are still on site but far away.
2:30pm:RCMP are now using ladders to move up the wooden tower overlooking the territory.RCMP have said that the people on the tower are already under arrest and they are just trying to get them down.RCMP won’t specify what the charges are or why the people in the tower are under arrest.
2pm: The US-Canada border crossing in Mohawk territory was shut down by protests.
1:55pm: Eve Saint, the daughter of@Gidimten Chief Woos, has been arrested along with one other. They were removed from the bus blocking the road. They have been walked out by RCMP. They are not hurt.
12:55pm: The metal gate at @Gidimten is down. Legal observer is trying to get RCMP badge numbers and police names but RCMP won’t respond. Some RCMP are wearing masks to cover their faces.
12:45pm: RCMP are trying to limit the visibility of the tactical team to media by surrounding a bus containing media. RCMP “have one person stationed on the other side of the flipped van. They’re the one doing the lethal overwatch. They’ve got a gun pointed at us, underneath the warrior flag,” we’ve just heard.
12:30pm: Those at @Gidimten just said the teams dropped off by the helicopters included K9 units – so they are surrounded by snipers and police dogs.
6:30 am: RCMP militarized convoy engines are running and lining up in Houston now. Their extremist force is hardly a peaceful action against our unarmed, peaceful protestors. Shame!!! – Gidimt’en Checkpoint
February 6th updates:
6:45 pm: All six people who were arrested in Gidimt’en territories this morning are being released with no charges. Three are out already.
4:44pm: Chiefs & supporters blocked the road at 27km, forcing RCMP to let Wet’suwet’en chiefs in. Clearing work has stopped at 44km. Dsta’hyl (Likht’samisyu) said the #Wetsuweten will enforce the eviction of Coastal Gaslink, with any means at their disposal.
4pm: Solidarity actions are taking place across Canada. A blockade has shut down the Port of Vancouver. Various politicians offices have been occupied. Indigenous youth are locked down at the B.C. Legislature.
2:40pm Pacific Time: People at the Gidimt’en Access Point (44 km; the site of the armed police raid in January 2019) are now confirming that they see heavy machinery approaching.
Militarized, heavily armed police units known as “tactical enforcement teams,” supported by K9 dogs and infrared camera-equipped drones, have this morning raided the Wet’suwet’en First Nation territory in central British Columbia, Canada to remove indigenous occupation aimed at preventing construction of a fracked-gas pipeline.
Between four and six people have been arrested at the blockade setup at 39KM on the Morice River Road, 27 km from the main Unist’ot’en Camp. Journalists on-site were threatened with arrest, prevented from photographing the events (including police smashing the window on a truck), and forcefully removed from the area. This is the second militarized raid on the peaceful indigenous resistance camp. The previous raid, in January 2019, was later revealed to have included “lethal overwatch”—authorization to shoot to kill. In both raids, police carried sniper and assault rifles.
The police raid Wet’suwet’en checkpoint shows they are acting as private contractors for the gas company, facilitating the plunder of stolen indigenous land and destruction of the planet for private profit.
Coastal GasLink/TC Energy is pushing through a 670-kilometer fracked gas pipeline that would carry fracked gas from Dawson Creek, B.C. to the coastal town of Kitimat, where LNG Canada’s processing plant would be located. LNG Canada is the single largest private investment in Canadian history.
Each clan within the Wet’suwet’en Nation has full jurisdiction under their law to control access to their territory. Under ‘Anuc niwh’it’en (Wet’suwet’en law) all five clans of the Wet’suwet’en have unanimously opposed all pipeline proposals and have not provided free, prior, and informed consent to Coastal Gaslink/ TransCanada to do work on Wet’suwet’en lands.
This is a developing story and we will share more information as it comes.
Call to Action — Blockade the Colonial Institutions
Indigenous youth in solidarity with the Wet’suwet’en Nation are calling for organized, rolling occupations of MLA and MP offices, and of financial institutions tied to Coastal Gaslink pipeline corporation.
7:48 am: RCMP are transporting the 4 arrested supporters to Houston. BC. Everyone at 39KM was arrested except media. Media that were at 39km are being driven out in a police van.
7:22am: 36 vehicles, 1 ambulance and heavy machinery went up from 4 KM. At least 2 bulldozers and excavator.
6:59 am: We have reports RCMP have headed up from town in an approximately 20+ vehicle convoy. #Wetsuweten#WetsuwetenStrong
6:43am: We have reports that RCMP are now blocking the forest service road at 4KM.
6:22am: We have lost all communication with the Gidimt’en watch post at 39KM after RCMP smashed the window of the radio vehicle. It’s still pitch black out.
6am: We have just heard that RCMP denied access to a reporter headed out to the camps this morning. Media exclusion zone is in full effect.
5:56am – The person on radio at 39km reports RCMP have broken in the windows of their vehicle.
5:43am – We estimate more than a dozen cops on site, with six cops surrounding the person communicating updates over radio.
5:30am – We’re hearing reports from the front line that some RCMP had their guns out – not pointed at people – but guns in hand.
We’re told that even with more than a dozen vehicles out on the territory, the Houston community hall is still full of cops waiting to invade our lands.
5:05am – We’ve heard 13 RCMP vehicles headed up the road earlier this morning. Up to 4 arrests have been made now, and RCMP are taking down tents. Our understanding is these tents were NOT blocking the road and are not part of the injunction area.
4:55am – It’s not yet 5am – still totally dark out – and we’ve just heard RCMP made their first arrest at the #Wetsuweten monitoring post at 39KM. Cops are surrounding people there and beginning to clear the road to the Gidimt’en checkpoint.
Deep Green Resistance delegation to Unist’ot’en Camp – 2012
“In a ruling taken as a devastating blow for climate campaigners worldwide, the 9th Circuit Court of Appeals in the United States on Friday afternoon threw out a lawsuit brought by 21 youth plaintiffs who accused the U.S. government of failing its constitutional mandate by refusing to act urgently and responsibly to address the existential threat of human-caused global warming.
The case at issue, Juliana vs. United States, has been seen as a potential landmark case not just domestically but across the globe and while the three-member panel of the 9th Circuit—notably seen as one of the country’s most liberal-minded circuit courts—agreed with the plaintiff’s argument that the U.S. government has operated as a barrier to climate action it concluded the courts were not the appropriate avenue for their complaint.
In the 2-1 majority ruling, written by Circuit Court Judge Andrew Hurwitz, he stated that while the panel was convinced by the narrative set forth in the lawsuit—agreeing the climate crisis has brought the world close to the “eve of destruction” and that “the government’s contribution to climate change is not simply a result of inaction”—it ultimately and “reluctantly concluded that the plaintiffs’ case must be made to the political branches or to the electorate at large.”
Deep Green Resistance covered this case back in November, when we published an article titled “The Legal System Will Not Save the Planet.” That article more or less predicated an ineffective outcome for this case—which is not something we revel in. We wish that this case were effective. But it will not be, for a variety of reasons discussed in that piece.
“Legally speaking, judges can rule anything they want, as long as they can justify it using legal precedent. But there are also specific legal and doctrinal barriers that confine all judges who sincerely believe in the structure of American law. Namely, as mentioned earlier, the notion that nature is property, that property can be rightfully destroyed or consumed by its owner, and the principles of corporate rights all stand in the way in the significant legal change. Further, even favorable court rulings would depend on the Executive and Legislative branches of the U.S. government, as well as on police, military, and other Federal employees, to enforce such a legal shift.”
Following the U.S. assassination of prominent Iranian General Qassem Soleimani last Friday, Iran has launched a missile strike against U.S. military bases in Iraq.
It is unclear what will happen from here, but there is a possibility of escalation and the potential of a major war. This would be a disaster for the people of Iran and Iraq, for the ecology of the region and of the entire planet, and likely for the United States as well.
There are two hallmarks of modern warfare: civilian deaths, and ecological devastation. Between sanctions, the Gulf War, and the 2003 invasion and occupation, the U.S. government is responsible for more than 2 million Iraqi civilian deaths. Falluja is a toxic nightmare of depleted uranium and birth defects, and the emissions from U.S. wars are a major contributor to global warming. This is not to mention the torture and other war crimes.
A war in Iran would only create untold suffering and instability, as we have seen from the fallout of the U.S. invasions of Afghanistan and Iraq.
Iran is no saint, either. Those who lionize Iran simply for standing up to U.S. power forget the lessons of the past. Most modern wars are not fought between good and evil, but between two different varieties of evil. This is the trajectory of civilizations. They are expansionist, aggressive powers that must fight to maintain their position. Iran is no more a force for good than was Saddam Hussein. Deep Green Resistance stands against all imperialism, whether the aggressor is the United States or China or Iran, and whether the weapon is cyber warfare, proxy conflicts, sanctions, international “aid,” or Predator drones.
So how do we resist a war such as this?
We are a radical environmental organization that advocates for dismantling the global industrial economy by any means necessary. We believe the Deep Green Resistance strategy provides a viable way to oppose imperialism by making modern industrialized warfare impossible. We do not aim to simply stop this war. We aim to stop all modern warfare, including the oldest war of them all: the war against the planet.
Civilian casualties in Iraq, Afghanistan, and September 11th, by James Buckley. Used under CC BY-NC 2.0. Image is from 2010, so figures are more heavily skewed towards civilian deaths by now.
Featured image: Kuwaiti oil wells on fire during the first Gulf War. Public domain photo.
by Sean Butler and Will Falk / Featured image: an aerial photograph showing harmful algae blooms in Lake Erie in August of 2017. These are believed to be caused by the effluent runoff from factory farms in the watershed. Public domain photo by NOAA.
Rights of nature advocates often repeat the words, “The structure of the legal system makes meaningful environmental protection illegal.” It’s a bold claim, but for most people it’s too vague to mean anything. Most folks (understandably) don’t know the difference between a federal district court and a circuit court of appeals, let alone what we mean by the “structure” of the legal system.
But it’s actually quite simple. We’re referring to two aspects of the American legal system: (1) laws and regulations at the federal, state, and local (city and county) levels and the relative hierarchy among them; and (2) the holdings of various state and federal courts throughout the history of our country, which establish “precedent” for what those laws and regulations actually mean.
Perhaps nowhere in recent memory has the “structure of the legal system” been laid bare more clearly than in the aftermath of the passage of the Lake Erie Bill of Rights by the citizens of Toledo, OH in February 2019. The Lake Erie Bill of Rights (LEBOR) grants Lake Erie the rights to exist, flourish, and naturally evolve; grants the residents of Toledo a right to a healthy environment; and “elevates the rights of the community and its natural environment over powers claimed by certain corporations.”
Although remarkable on its face, LEBOR is only one of dozens of similar local laws that have been passed in recent years in cities and counties across the United States. What is truly remarkable is the response LEBOR has received from existing institutions.
Mere hours after the City of Toledo certified LEBOR’s election results, entrenched interests opposed to environmental protection leveraged the existing structure of American law to mount an urgent opposition to LEBOR. Drewes Farms Partnership (“Drewes Farms”), represented by a corporate law firm, sued the City seeking an injunction against enforcing the law on the basis that LEBOR violates Drewes Farms’ “civil rights.” The State of Ohio was allowed to intervene in the case to argue for LEBOR’s invalidation while the grassroots community group, Toledoans for Safe Water – who drafted LEBOR and ushered it through Ohio’s citizen initiative process — was barred from the case by the federal judge. Then, the Ohio State legislature (at the request of the Ohio Chamber of Commerce) included in its 2019 budget a provision explicitly making it illegal for local governments to make or enforce laws ascribing legal rights to nature.
In short, the existing legal system and those who profit from it brought the full weight of the legal system against LEBOR. To really understand what is meant when we say that the structure of the legal system makes meaningful environmental protection illegal we need to dig into the specifics of this onslaught.
LEBOR’s opponents make primarily two legal arguments against it. First, they claim that LEBOR should be invalidated because it infringes on corporate constitutional rights. Second, they argue that LEBOR is preempted by state and federal law that reserves the right of the state of Ohio and the federal government to legislate on environmental matters.
Drewes Farms makes the corporate constitutional rights argument very clearly in the complaint it filed in federal court, claiming that:
“LEBOR causes real and concrete harms on Drewes Farms by violating the United States Constitution including but not limited to:
Depriving Drewes Farms of its fundamental right to freedom of speech and to petition the courts under the First Amendment;
Violating Drewes Farms’ right to equal protection by targeting it for liability based solely on the fact that it operates as a partnership business entity;
Violating the Fifth Amendment protection against vague laws by exposing Drewes Farms to strict criminal liability and massive damages and fines under a standardless Charter Amendment; and
Depriving Drewes Farms of its rights without due process.”
This 2010 map shows the location of major factory farming operations in Ohio and corresponding water quality readings. Ohio has among the highest density of CAFOs (Concentrated Animal Feeding Operations) of any U.S. state. Map by Kim Michalson.
Just so we’re clear, Drewes Farms, a non-human legal entity, lays claim to rights under the First, Fifth, and Fourteenth Amendments to the US Constitution AND claims that those rights are violated by a law that recognizes nature’s right to exist, flourish, and naturally evolve.
Meanwhile, the State of Ohio, in its Complaint for Declaratory Judgment and Injunctive Relief plainly states that “[t]he Ohio Constitution art. XVIII § 3 does not allow a municipality to enact an ordinance that prohibits regulated activity authorized under state permits issued pursuant to state laws of general applicability.” To support its claim, the State cited a recent Ohio case in which the judge ruled “[s]tate laws with state-wide application preempt local ordinances that discriminate, unfairly impede, or obstruct general laws regulating oil and gas activities.” In other words, the Ohio state constitution itself specifically prohibits any local government to enact laws that prohibit activities that are permitted by state laws.
The fundamental issue with both of these arguments is…they are absolutely, totally, and completely right. Under current American jurisprudence, Drewes Farms does have civil rights under the First, Fifth, and Fourteenth Amendments (among others), and LEBOR does violate principles of preemption.
And that is precisely the problem.
Because American law has long recognized corporate civil rights and has long used preemption to invalidate local laws that provide for stricter regulations than federal or state governments, the State of Ohio and Drewes Farms would have us believe that this should be the end of the discussion. But, ending the discussion here leaves several problematic assumptions unchallenged. Arguing that LEBOR should be invalidated because it infringes on corporate rights only makes sense if corporations should enjoy those rights under our system of law. And arguing that LEBOR should never be enforced because it violates established principles of preemption only makes sense if preemption is beneficial to American citizens.
So, we must dig deeper. We must ask: Why do corporations exist? What are corporate rights? Why does the American legal system afford corporations rights in the first place? We must also ask: Why does preemption exist? Why does the American legal system protect the state and federal governments’ power to preempt laws passed by local communities? And, is there a connection between growing corporate power and preemption?
While there is a debate about what corporations should exist to do, the fact remains that corporations exist to amass wealth, or to borrow one of corporate apologists’ favorite phrases, to “maximize shareholder value.” We can see this argument clearly in the hugely influential essay published in 1970 by the Nobel Prize-winning economist Milton Friedman in The New York Times Magazine aptly-titled “The Social Responsibility of Business is to Increase its Profits.” Environmental author and philosopher Derrick Jensen, in The Culture of Make Believe, is more direct:
“To expect corporations to function differently than they do is to engage in magical thinking. We may as well expect a clock to cook, a car to give birth, or a gun to plant flowers. The specific and explicit function of for-profit corporations is to amass wealth. The function is not to guarantee that children are raised in environments free of toxic chemicals, nor to respect the autonomy or existence of indigenous peoples, nor to protect the vocational or personal integrity of workers, nor to design safe modes of transportation, nor to support life on this planet. Nor is the function to serve communities. It never has been and never will be.”
Wealth is power. This is especially true in the legal system. Many people envision law as an all-powerful list of rules that dictates what someone can or cannot do. Similarly, many people think of rights as a list of privileges that specify what a person is entitled to do or entitled to be free from. As such, many people imagine that they can simply invoke these rights to be safe. But, it is a mistake to think that rules written somewhere in a book of statutes or rights listed in the Constitution have the power to jump off the paper where they are written and enforce themselves.
The key to understanding law and rights lies in understanding how they are enforced. Judges enforce law and rights by making decisions in court. And those decisions in court, in turn, are enforced by the police who are entitled to use physical force to ensure a judge’s decision is adhered to. When most people think about how this works, they envision examples such as President Eisenhower’s use of the National Guard to desegregate schools to uphold African Americans’ Fourteenth Amendment rights. But, a more apt and contemporary example is reflected in how the police were used at Standing Rock. Dogs, water cannons, and military-style weapons were turned against nonviolent protesters once the owner of the pipeline project, a corporation, won a favorable court ruling. These corporate rights-holders harnessed the state’s police power through the courts.
A typical “animal waste lagoon.” These containment ponds continuously leach into groundwater, and often overflow. Public domain photo by NRCS.
Rights, then, are power, too. When shareholders form a corporation, the corporation gains the privilege of “corporate personhood.” Because American courts treat corporations as “persons,” corporations have long exercised rights, including those afforded the highest level of protection under the Bill of Rights’ Contracts Clause, Due Process Clause, Fourteenth Amendment Equal Protection Clause, First Amendment, Fourth Amendment, Fifth Amendment Takings and Double Jeopardy Clauses, Sixth Amendment, and Seventh Amendment.
These rights have, for the most part, been judicially created and have consistently expanded throughout American history. The word “corporation” is found nowhere in the Constitution. Despite this, in 1819, in Dartmouth College v. Woodward, the U.S. Supreme Court ruled that the Contract Clause of the Constitution granted private business corporations protection from governmental interference in internal governance. In 1886, in Santa Clara County v. Southern Pacific Railroad Company, the Supreme Court ruled that a corporation is a person under the law and is therefore entitled to equal protection under the Fourteenth Amendment. In 1922, the Supreme Court ruled in Pennsylvania Coal Company v. Mahon, that coal corporations were entitled to protection under the Fifth Amendment “Takings Clause” and that the government must compensate corporations for property value lost due to mining regulations. In 2010, the Supreme Court ruled that federal laws which limited corporate spending in elections violated corporate First Amendment “free speech” rights in Citizens United v. Federal Elections Committee. Then, in 2014, the Supreme Court, in Burwell v. Hobby Lobby Stores, allowed corporations to deny its employees health coverage of contraception to which the employees would otherwise be entitled because corporations are entitled to First Amendment freedom of religion protection.
This might not seem problematic on its face, but recall that rights only have practical effect to the extent that rights holders can access the courts in order to ask a judge to enforce those rights. Corporations, that exist to, and have grown quite adept at, amassing wealth, have greater means to put behind the legal enforcement of rights. This naturally means more cases won by corporate plaintiffs, more caselaw upholding corporate rights, and therefore, by extension, more caselaw expanding the sphere of corporate civil rights. And the sheer number of cases bear out this reality. As an example, consider this: between 1868, when the Fourteenth Amendment was ratified, and 1912, the Supreme Court ruled on only 28 cases involving the rights of African Americans and an astonishing 312 cases on the rights of corporations, it is easy to conclude that the Fourteenth Amendment has done a better job protecting the rights of corporations than that of African Americans.
At the same time, the expansion of rights in one sphere necessarily produces the curtailing of rights in another. Deep ecologist John Livingston describes the problem:
Effluent discharge pipe. Public domain image from USDA.
“We sometimes forget that every time a court or legislature – or even custom – confers or confirms a right in someone, someone else’s right is nibbled at: the right of women to equal employment opportunity is an infringement of the freedom of the misogynist employer; the right to make a profit is at someone else’s cost; the right to run a motorcycle or a snowmobile reduces someone else’s right to peace and quiet in his own backyard; the rights of embryos impinge upon the rights of the women who carry them. And so on.”
In other words, the expansion of corporate rights shrinks the rights enjoyed by citizens and communities. Because American law extends to corporations many of the same constitutional rights humans enjoy and because corporations exist to accumulate wealth, we should not be surprised when corporations use their power to do exactly that at the expense of the rights of human beings and nature.
The other major legal argument made against LEBOR is that it is preempted by state and federal law. Preemption is a doctrine that says the law of a higher jurisdiction should displace the law of a lower jurisdiction when the two jurisdictions conflict. The American legal system is divided basically into three jurisdictions: federal, state, and local law (local law is a general term for the law of the smallest legislating entities American law allows, entities such as municipalities, cities, or villages). When federal and state law conflict, American courts interpret the Supremacy Clause of the United States Constitution (Article VI, Section 2) to mean that federal law should displace state law. Similarly, state law usually trumps local law when the two conflict.
Corporations, using their superior wealth and their constitutional rights, have found tremendous success in influencing federal and state legislatures, especially pro-business, conservative legislatures and persuading them to enact aggressive new preemption laws. When local governments pass laws with stricter restrictions than the federal or state legislatures, corporations lobby legislatures to employ preemption to attack these local laws. This typically happens in one of two ways. First, government lawyers, primarily attorneys general, assert the doctrine of preemption in court. The State of Ohio’s arguments against LEBOR are a perfect example. Second, legislatures pass legislation known as “blanket” preemption to expressly forbid local ordinances that contradict state law. And, in fact, the Ohio House of Representatives recently employed blanket preemption when it adopted its 2020-2021 budget with provisions that prohibit anyone, including local governments, from enforcing rights of nature laws.
That’s what preemption is. The more important question is: Why does American law protect the federal and state governments’ power to preempt laws passed by local communities? The answer, quite simply, is corporate power.
The modern preemption doctrine was born from an 1868 decision written by Iowa Supreme Court Chief Justice John Dillon in The City of Clinton v. The Cedar Rapids and Missouri River Railroad Company. The case involved an attempt by the people of Clinton, Iowa to prevent railroad corporations from building railroads through their town. An ordinance was passed by the Clinton city council which prohibited any “railroad company from constructing its track through or upon any street within the limits of the city, and from occupying the same for right of way or other railroad purposes.”
In the decision, Dillon struck down Clinton’s ordinance and described his philosophy of the limited powers of municipal corporations and other local governing entities. This philosophy is now known as “Dillon’s Rule.” He wrote:
Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. If it may destroy, it may abridge and control. Unless there is some constitutional limitation on the right, the legislature might, by a single act, if we can suppose it capable of so great a folly and so great a wrong, sweep from existence all of the municipal corporations in the State, and the corporation could not prevent it. We know of no limitation on this right so far as the corporations themselves are concerned. They are, so to phrase it, the mere tenants at will of the legislature. 24 Iowa 455, 475.
A pig at a factory farming operation. These industrial farms are the largest source of nutrient pollution in Lake Erie. https://creativecommons.org/licenses/by/2.0/ Via Mercy for Animals.
And, Dillon’s Rule was later adopted by the United States Supreme Court in 1907 in Hunter v. Pittsburgh.
As you can see, from the outset, preemption has been, quite literally, about corporations “railroading” local communities who do oppose destructive corporate projects. Today, preemption has grown into a powerful tool wielded by, especially, conservative, pro-business state legislatures. Judge Jon D. Russell and Aaron Bostrom, in a white paper titled “Federalism, Dillon Rule and Home Rule” recently written for the American City County Exchange (an organization that “helps to advance limited government and free market principles in local government through model policies, conferences, and online collaboration”), provide a solid example of the rationale employed by state legislators to defend preempting local laws.
Russell and Bostrom write:
The Dillon Rule guarantees a certain level of uniformity throughout the state…Rather than having vastly different policies and codes in each local jurisdiction, the state can create uniform tax codes and licensing policies, making it a business-friendly environment. Without commonality between local governments on these issues, businesses find more red tape than opportunity, making it difficult for the state and businesses to prosper.
Dr. Lori Riverstone-Newell, an expert in the interaction of governments in the American system, describes how in the past few years, “a growing number of state officials have sponsored and supported preemption legislation with the intent to weaken local authority and to thwart local progressive policies.” In simpler terms, conservative state legislators are learning how to use preemption to prevent progressive communities from enacting progressive laws.
We can see why some commentators argue we live in a corporate state. If the fundamental element of a democracy is the right of the people to enact and enforce the laws to which they are subject, then preemption is fundamentally an anti-democratic concept, especially as the doctrine has been influenced and wielded by entrenched economic interests and the state and federal legislators who support (and who are, of course, supported by) those interests.
Indeed legislators are not working alone; they are implementing policies pushed by corporate lobbyists. Dr. Riverstone-Newell explains, “Recent preemption efforts can be understood, at one level, as part of longstanding campaigns waged by industry groups hoping to stop or limit progressive local policies in order to create a friendlier business environment for themselves.” She describes how industry groups and trade associations first began pressuring state legislatures to rein in their cities in the late 1980s. R.J. Reynolds, the tobacco corporation, “pressed states to enact preemption laws in the 1980s as a central strategy to overcome local smoking restrictions and bans.” Abby Rapoport, a journalist writing for The American Prospect, reports how the National Rifle Association launched a campaign in the 1990s for state preemption of local gun regulations. This campaign was so successful “43 states now have some form of maximum preemption preventing localities from passing additional gun regulations on top of state law.”
It may very well be that “a certain level of uniformity” of laws in different jurisdictions enables business to “prosper,” but having reached the point in our nation’s history where we are confronting ecological collapse, we have to ask ourselves, whether blanket uniformity and unchecked economic growth and prosperity are the only values that matter to us. Or, instead, might it be that local environmental protection laws are key to protecting local ecology? Might it be that the unique ecosystems in one ‘jurisdiction’ require unique laws and regulations in order for them to thrive? Why should we expect that laws protecting swamplands in Florida be the same as those protecting the Nevada desert? If we are to see our way through the current environmental crisis, we can’t simply accept the doctrine of preemption on its face; we must consider the value of it, and its history and development, in order to determine whether or not it is compatible with the future we want for our grandchildren and the planet.
The failure to recognize how American law makes sustainability illegal is a primary reason environmentalists have failed to keep the health of the North American continent from deteriorating over the last century. Because we fail to recognize this, we keep seeking to protect the natural world through legal and political processes that do not – cannot – work. The late corporate anthropologist Jane Anne Morris described our predicament clairvoyantly:
Lake Erie (left) is the 11th largest lake in the world. Public domain NASA photo.
“Our campaigns follow the gambling addiction model. The last bet didn’t pay off but the next one might if…if…if we just had a new, improved tripod, three more experts, more labor or church support, ten more elected officials on our side, a hundred more people at the demo, or a thousand more letters in the mail…Who are we kidding? We are just doing the ‘same old thing’ over and over again and fooling ourselves that it might work next time. We are stuck in a feedback loop where our failures are interpreted as signs that we should repeat our failed tactics, but try harder. This is what it is to be colonized.”
Lawyers, and their clients, are especially vulnerable to falling victim to Morris’ gambling addiction model. The adversarial, competitive nature of law where two or more sides jockey for the approval of a judge makes it easy for losing parties to conclude that if they just hired a more expensive law firm, or if they just argued an issue differently, or if they just cited this case instead of that case then they would have won. The problem, however, is not that we need to try harder; the problem is that the structure of American law prevents our ability to implement strong enough measures to truly protect the natural world.
The people of the City of Toledo, recognizing that corporate rights and preemption must be confronted and overturned to protect Lake Erie and all those who depend on her, voted to enact the Lake Erie Bill of Rights. The arguments made by the State of Ohio and Drewes Farms Partnership are currently the law en vogue. This is one of the major reasons American law makes sustainability illegal. This must change if the natural world, and all of us who depend on her, are going to survive the current ecological predicament. To achieve a sane, sustainable culture, corporate rights and preemption must go.
