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Synthesis/Regeneration 48   (Winter 2008)

As Goes South Korea, So Went Missouri — And What To Do About It

Meat, “Free Trade,” and Democracy

by Jane Anne Morris

In the spring of 2008, tens of thousands of South Koreans held candlelight vigils every day for over a month to protest being forced to accept beef from the United States. The US government claims that barring our beef — South Koreans’ failure to let down their cattle guard, you might say — is an illegal “trade barrier.”

This isn’t the first time the US has resorted to international bullying to force people to take our meat. In 1996, the European Union (EU) banned imports of US artificial hormone-fed beef for public health reasons. A challenge from the US convinced the World Trade Organization (WTO) to brand the EU policy a “free trade” violation.

You’ve got to wonder what those South Koreans think might be wrong with US beef. (I’ll give it away — it is a justified fear that the US does not take sufficient precautions against “mad cow disease.”) But my concern here is not the meat but the mechanism.

You might also ruminate on why forcing a country (or community) to import things it clearly doesn’t want to import is called “free trade.” The shortest definition of “free trade” is Forced Trade: communities (or countries) are forced to import stuff they think is dangerous or otherwise objectionable, and export stuff (such as water and other resources) that they want to keep at home. Such matters far transcend the notion of mere “trade.” What’s at stake is no less than self-governance and democracy.

The scraps of self-governance that South Koreans are struggling to retain have already been stripped from, say, Missouri. Those protesters in Seoul (and others around the world under draconian “free trade” regimens) are going through something that has been happening in the US for well over a century, and is so well established that we are scarcely even aware of it.

… the Supreme Court … used the Constitution’s “commerce clause” to rationalize a domestic “free trade” zone in the US.

Passing laws to protect citizens from the possible dangers of incoming meat has long been a concern of governments. And for decades, states in the US did just that. But starting in the 1870s, the Supreme Court, acting in the interests and at the behest of corporate meat purveyors, used the Constitution’s “commerce clause” to rationalize a domestic “free trade” zone in the US.

That meant that protective state laws like these had to go:

State laws — and not just ones about meat — adapted for local conditions, concerns, and preferences were routinely rejected as “trade barriers.” Eventually Congress established federal regulatory authorities (often sloppier on standards and enforcement) that helped a few large corporations dominate the national market. As the power of federal regulatory agencies and large corporations waxed, the influence of both states and small businesses waned.

Much state and local power has been stripped, but states still attempt to do better than the lax and selectively enforced federal standards. But if they step out of line, the US’s own trade tribunal (our “free trade” enforcer) — the Supreme Court — steps in. In 1967, for instance, an Oregon law requiring country-of-origin labels on meat was declared unconstitutional by the Supreme Court because it purportedly interfered with interstate commerce.

If people are unhappy with the power of the Supreme Court, go to Congress and amend the judiciary acts.

Within the US, we already live in a “free trade” zone like the one we are trying to resist internationally. In fact, setting it up in the US was a practice run for the Forced Trade regimen administered today under the WTO, NAFTA, and other agreements.

Since the 1870s, states have fought corporations in court over this “overbroad,” to put it mildly, use of the commerce clause, as I detail in my book on the history of the commerce clause, Gaveling Down the Rabble: How “Free Trade” Is Stealing Our Democracy. How do we get out from under this seldom recognized limitation on our ability to govern ourselves and see to the general welfare of our communities? There are a number of possibilities.

Redefine the role of the US Supreme Court. This is mostly a Congressional matter because the bulk of the high court’s power comes not directly from the Constitution, but from Congressional Acts granting increasing power and discretion to the Supreme Court (and federal courts in general). The specific power to throw out state laws was an early gift from Congress and has never been popular with the states.

In particular, the Judiciary Acts of 1789, 1875, and 1925 handed over huge chunks of power to the Court. If people are unhappy with the power of the Supreme Court, part of the solution is to go to Congress and amend the judiciary acts. This is done quite frequently but for some reason, activists pay little attention.

The Tenth Amendment is an inspiration too often overlooked: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

Have Congress Clarify the Limits of its Power. Many times, the Supreme Court voids state laws by implying that the matter is one for Congress to deal with. Congress need only pass a law saying something like, ”The passage of this organic food standards law is not intended to prevent states from passing stricter laws to protect their citizens,” or some such, and the matter is greatly clarified. One obvious difficulty here is that Congress has not generally been inclined to pass laws limiting its power. However, it has on occasion done so, for example in the case of laws about the import and sale of alcoholic beverages, which remain very much (though not exclusively) a local matter.

It would not be difficult to sketch out a generic “rider” to attach to any Congressional Act purporting to be about health, safety, consumer protection, labor rights, environment, and so on. That “rider” could assert that Congress allows and encourages states to pass stricter laws as long as federal laws’ minimum standards are met (another way of indicating that federal laws establish not a ceiling but a floor for standards).

Challenging Supreme Court doctrines happens all the time, but, unfortunately, the right seems to be more adept at this than the rest of us.

Work to Overturn the Supreme Court’s Doctrine. “Separate but equal” stood for 58 years as the “law of the land” before massive agitation convinced the Supreme Court to finally reject it. Similarly, today many people are challenging (or picking away at) Roe v. Wade. Challenging Supreme Court doctrines happens all the time, but, unfortunately, the right seems to be more adept at this than the rest of us.

The procedure here is to first educate the public about the offending doctrine (in this case, use of the commerce clause to strangle state and local authority by imposing a “free trade” zone), and then initiate a test case. Two common methods here are (a) break a law, get taken to court, and raise the constitutional issue, and (b) pass a law, wait for someone (usually a corporation) to challenge it in court, and then raise the constitutional question.

Change the Way We Determine the Constitutionality of Laws. Over the decades, states and their representatives have made numerous efforts to change the way that we determine the constitutionality of laws, especially state laws. Two of the many suggestions offered are: (a) requiring a 2/3 or greater majority of the Supreme Court to void a law, or (b) allowing a Congressional majority or supermajority to override a Supreme Court determination of unconstitutionality. And, if we range farther afield and look at how other so-called “western-style democracies” do it, we find that many of them have special “constitutional courts” that don’t mix deciding a case with evaluating the constitutionality of laws.

As anyone who has dealt with law and regulation knows, matters of local versus state versus federal jurisdiction can become surreally complicated. But as Vandana Shiva and others have noted, real democracy comes from below. If local levels are solid, what emerges above is more likely to reflect people’s needs than corporate convenience. Today, as current controversies with NAFTA and WTO tribunals remind us, many promising local and state measures are vetoed by state, national, or international “authorities” acting in the interest of corporations.

…we might as well simultaneously challenge both the domestic and the international versions of Forced Trade.

Current global corporatization efforts use the Supreme Court’s tried-and-true techniques ratcheted up one level of generality. The issues and reasoning are so similar that you could take old Supreme Court cases, scratch out phrases like “Spanish fever” and substitute “mad cow disease,” and use them for WTO decisions.

But since we know the arguments well, and understand that the issue is democracy and no mere matter of trade or commerce, we might as well simultaneously challenge both the domestic and the international versions of Forced Trade.

Corporate anthropologist Jane Anne Morris lives in Madison, Wisconsin. Her book Gaveling Down the Rabble: How “Free Trade” Is Stealing Our Democracy (Apex Press, 2008) discusses the history alluded to in this article.

© 2008 Jane Anne Morris

[19 dec 08]

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