Synthesis/Regeneration 9   (Winter 1996)

A Human Health Amendment to the US Constitution

by Don Fitz, Gateway Green Alliance

Poisons are entering the environment at a greater rate than has ever occurred before. The greatest quantity of contaminants come from the largest multinational corporations. They do this with increasing ease because a partnership between big business and big government is actively removing the right of local governments and states to restrict the release of toxic substances. In order to reverse this trend, Americans need a constitutional amendment which guarantees states the right to protect human health.

Can environmentalists expect to find allies among those who claim to defend community values and states rights? That seems very unlikely. In the 1990s, "conservatives" are not conservative. There are few who trample more on states rights than do the self-proclaimed "states rights conservatives."

In common usage of the term, "conservative" means someone who wants to conserve traditional values of community, family and the natural beauty of the earth. But the word has been perverted by those who sacrifice any traditional sense of morality on an alter of uncontrolled corporate greed. Modern "conservatives" are not conservative at all—the correct term to describe them is "corporationists."

While these corporationists pontificate against big government out of one side of their mouths, their other side furtively centralizes economic power in super-big business and subordinates all government to corporate whims. The power of local governments to protect health and safety are being removed by the same politicians who mouth vacuous verbiage of "local control."

There are four clear examples of corporationists' opposing the right of states to protect themselves: rBGH, the Delaney clause, toxic substances and international trade agreements.

Would you want a glass of pus with milk in it?

Monsanto's program to develop recombinant bovine growth hormone (rBGH) was not motivated by a shortage of milk because there was no milk shortage. As the milk-stimulant was produced, Monsanto's profits went up, cows got sicker, and small diary farmers found it harder to compete with the dairy conglomerates who could more easily afford rBGH drug paraphernalia.

The unfortunate milk drinker is now confronted with at least four sources of contamination: (1) rBGH itself, which could cause allergic reactions in some people; (2) pus, from the increased incidence of mastitis in injected cows; (3) antibiotics, used to treat the infected cows; and, (4) IGF-1, insulin-like growth factor #1, a chemical whose production is stimulated by rBGH. Many local producers wished to label their milk as rBGH-free. But Monsanto lawyers rushed to the Food and Drug Administration (FDA) to obtain a ruling that the degree of contamination was within acceptable limits. Labeling was crushed and consumers were prevented from having the right to know which milk contains rBGH.

FDA corporationists prevented states from protecting the health of their citizens. Americans need a clause in the US Constitution which guarantees states the right to label products such as rBGH milk or even prevent their sale.

Risk assessment is to chemistry
        as phrenology is to neural anatomy.

In 1958, Congressman James Delaney (D-NY) authored an amendment to section 409 of the Food, Drug and Cosmetic Act. Known as the Delaney clause, it prohibited the Food and Drug Administration (FDA) from approving any food additive which causes cancer. It was the basis for banning many pesticides, including DDT.

Corporationists spent years developing a strategy to get rid of the Delaney clause. They came up with the idea that each chemical should be analyzed to determine what amount would cause an "acceptable" level of disease. Quantities below this level would be deemed "safe." This method of deciding acceptable level of poisons was deemed "risk assessment." Environmentalists (at least those environmentalists not on corporate payrolls) generally agree that risk assessment is a fraudulent pseudo-science. Not only is it impossible to know all of the diseases associated with given chemicals; the risk assessors do not even pretend to study synergistic effects of thousands of chemicals.

As congressional corporationists rush to substitute risk assessment for the "zero-risk" principle of the Delaney clause, it is clear that states need the right to protect citizens from chemicals such as pesticides and food additives.

Poisons not intended for food

Many chemicals were never intended to touch human food. But they are taken into the body by breathing them, drinking them, or, most often, eating food which these chemicals reached through the air. One of the best known of such toxic substances is lead.

Recently, many environmentalists have focused on the class of chemicals known as organochlorines. They include PCBs, furans and dioxins. Organochlorines result in cancers, birth defects and immunological disorders. They are formed by processes in which chlorine is combined with petrochemicals and other organic matter, such as the manufacture of many pesticides, the chlorine-bleaching of paper, and the burning of chlorinated plastics in incinerators and accidental fires. These processes release organochlorines into the air and water. They make their way through the food chain into humans.

Several articles in Synthesis/Regeneration—including those written by Barry Commoner, Pat Costner, Joe Thornton and Joan D'Argo—have explained the need to remove chlorine from production as the only way to ensure that it does not end up in the food chain. Bonnie Rice has written in S/R of the fact that alternatives to the use of chlorine exist throughout industrial processes. But with the same obstinacy that ancient Roman aristocrats upheld the use of lead in pottery, modern corporationists vow to defend American vitality by spreading even more chlorine throughout manufacturing industries.

International bureaucrats

Recent trade agreements manifest the worst corporationist dream of globalized production. The North American Free Trade Agreement (NAFTA) and the General Agreement on Trade and Tariffs (GATT) make it easier for manufacturers to relocate where labor and environmental standards are the weakest. An equally devastating tendency is for international agreements to include sections allowing trade boards to overrule local laws. If a state passes a law prohibiting the entry of fruits with residues of certain pesticides, a trade board could rule that the state was using standards more strict than those permitted. The problem, of course, is that those who set international standards are mightily influenced by multinational corporations who have a lot to gain by prohibiting the prohibition of contaminated food.


A Human Health Amendment could prevent this from happening. Any state could have standards for the amount of pesticides on fruit or vegetables which were more strict than levels set by Congress or international trade boards. NAFTA and GATT say that, if a board rules that a state law is too strict, the national government (in the case of the US, the Congress) must invalidate the law or face stiff fines. The proposed Constitutional amendment would prohibit Congress from ever taking such an action. Its adoption would very likely spark similar legal changes in countries throughout the world.

Draft Wording of a Human Health Constitutional Amendment

No law enacted by a state or any of its political subdivisions that restricts production of goods with, or sale of goods containing, substances harmful to human health, shall be affected by any law enacted by Congress that gives less protection to human health.

The Human Health Amendment would guarantee states the right to label or ban products such as rBGH. It would allow states to eliminate chemicals such as chlorine from an entire range of industrial products. States could pass phase-out laws, which would grant industry a specified time period to find substitutes for chlorine before the ban went into effect. If states were worried that such laws could result in their losing an industrial base, they could pass multi-state contingency laws (MSCLs). MSCLs would stipulate that a law would go into effect only when a given number of other states passed similar laws. There might even be a rebellion of local governments fed up with their jobs, safety and community health being axed for the profits of multinational corporations.

The development of constitutional law has not been an uncontested drift toward centralized power in the federal government. Throughout US history, groups such as Jeffersonians and Populists have struggled for decentralization and guarantees of powers to local and state governments. (The drafting of the Bill of Rights after the Constitution was written is the earliest example of this conflict.)

Perhaps the most duplicitous participants in this long battle have been the modern corporationists who wave the states rights banner while doing everything they can to undermine local power. It is time to unmask this dishonesty. It is time to ask them, "If you truly support states rights, will you whole-heartedly endorse a constitutional amendment to guarantee the right of the states to protect the health of their citizens?" The massive poisoning of workplaces and communities may well be the spark which ignites a new trend for democratic empowerment.

The author would like to thank Fred Striley for explaining what a "conservative" is, Robert Benson for proposing the wording of the Human Health Amendment, and Mark Guy for the glass of pus.

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