DEMOCRACY SHOOL With [Out] Liberty and Justice for All: Lessons Learned at Democracy School "I have been

greatly abused, have been obliged to do more than my part in the war, been loaded with class rates, town rates, province rates, Continental rates and all rates...been pulled and hauled by sheriffs, constables and collectors, and had my cattle sold for less than they were worth...The great men are going to get all we have and I think it is time for us to rise and put a stop to it, and have no more courts, nor sheriffs, nor collectors nor lawyers." These words attributed to Massachusetts farmer Plough Jogger sum up the motivation for Shays’ Rebellion, a 1787 movement involving thousands of rural central and western Massachusetts farmers. After fighting valiantly for America’s independence in the Revolutionary War, the farmers found themselves impoverished and oppressed under an American government increasingly controlled by the wealthy and elite. Finding no representation for their issues and no relief through petitions to their legislators, the “Shaysites” took matters into their own hands and fought back to keep intact their homes, livelihoods, and the independence for which they had fought so bravely only a few years earlier. How familiar the words of Plough Jogger might seem to many Americans today who experienced bankruptcy and the foreclosure of their homes through the recent burst of the housing bubble, while wealthy corporate banks received government bailouts. Familiar words, too, to communities under unwanted encroachment from longwall coal mining, hydraulic fracturing, pipelines, animal factory farms, or the spreading of sewage sludge upon their land. Just as the burdened Shaysite farmers questioned over two hundred years ago, many Americans today ask why our government works against the people instead of protecting the rights of communities and the individuals within them. Why does our government fall so far short of the ideal upon which it began: “That all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness.” Like the farmers of Shays Rebellion, many Americans today are searching for the way to return these inalienable rights to the people, where they justly belong. Approximately two dozen citizens seeking those answers met last February at Susquehanna University to attend a weekend Pennsylvania Community Rights Workshop, presented by the Community Environmental Legal Defense Fund (CELDF). Sponsored by Shale Justice, the workshop’s 11-hour “Democracy School” session was

widely appreciated by those in attendance, who represented all ages and hailed from all walks of life.

I. Pennsylvanians have a right to local self-government, and have historically exercised that right through their community governments.

The Work of the Community Environmental Legal Defense Fund

CELDF presenters Ben Price and Chad Nicholson began the class Friday evening with an overview of the Pennsylvania Community Rights Network (PCRN), a non-partisan, statewide movement seeking to return the inalienable right of local self-government to communities. Price and Nicholson described how CELDF has worked with communities to enact local “bills of rights” to protect the fundamental rights of the citizens.

Price explained why the traditional approach to bring change to government is not working. After several years of advocacy, CELDF has learned that attending hearings and demanding stronger regulation does not produce the desired outcomes for communities. It was time to do something else; time to get out of the “regulatory fallacy box” that creates an illusion of protecting citizens and their environment but instead inflicts unwanted elements upon them.

The “regulatory fallacy” is the belief that regulations are in place to protect our health, communities, and environment. With little exception, citizens are not allowed to say no to unhealthy activities they don’t want in their communities. Price presented several reasons why the regulatory fallacy exists and how it boxes in citizens from creating the community outcomes they desire:
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State preemption: The state has the ability to override the desires and rules of the local community. Corporate privilege: Corporations have privileges equal to the rights of human beings. Nature as property: Forest, rivers, and ecosystems have no rights and must suffer at the will of the property owner. The “black hole of doubt”: The unwillingness of the people within a community to believe that they possess the power to make the changes needed to restore their right to community self-government.

The way out of the regulatory fallacy box, said Nicholson, is through the drafting of binding, local laws–rights-based laws–based on the fundamental inalienable rights of

community members to govern themselves democratically. Whether the issue is factory farms, hydraulic fracturing, sewage sludge, injection wells, or anything else undesirable to the community, the founding principle is the same: Citizens have the right to local community self-government. CELDF helps communities identify the constraints that hold them and understand where those constraints came from. Communities can then begin to create a plan to develop ordinances and constitutions that will actually protect their communities. Knowing how to make these changes–to get out of the box–requires understanding how we got there, said Nicholson. He explained that the curriculum for the new Pennsylvania Democracy School is based on the national school, but tailored for the Keystone State. This is why the state-specific text book for the school, the Pennsylvania Community Rights Cook Book, was created. This 700-page text book provides a detailed and comprehensive account of American and Pennsylvania history, revealing how state and federal laws originated and how they evolved to the presentday status. The Right to Self-Government Pennsylvania began under a system designed to protect the privileged. Charters granted by the British crown were created to establish protected trade zones in incorporated communities governed by the elite. Charters did not protect the rights of the residents, but instead protected the privileges of an elite few. The charter granted to William Penn in 1681 by King Charles II gave Penn and his heirs complete proprietorship over the once common ground that would become Pennsylvania. Only Penn’s family was granted rights with the King’s charter; Nature and all others living within the charter’s borders lost their rights. Penn, a Quaker, is noted for his Frame of Government established to create a democratic system of government for Pennsylvania. But as Price pointed out, Penn’s system kept the government largely in the hands of his family and away from the residents of his chartered land. However, enforcement of Penn’s government and charter were not always easily achieved. By the 1730’s, harder-to-supervise rural areas were especially problematic, and residents of those areas began to develop their own local county structure in response to their frustrations with Penn’s system. The rural residents saw government as a means to provide needed services for the community, not as a means to protect elite interests and privileges for a few. Rural citizens began electing local officials by popular vote and were voting several times a year on issues important to the community. As a result, the early rural county residents of Pennsylvania were actively involved and knowledgeable in the political process and self-government. This was an important element in the move for American independence. In fact, the official Declaration of Independence in 1776 was foreshadowed by at least 90 other local community declarations of independence across the colonies and incorporated some of their elements. It is important to remember that the actual calls for independence came from the local communities, from the “bottom up” rather than from the top down. The people did not come to America to promote and elevate the elite; the people instead wanted the right to self-government within their communities. Pennsylvania was an important key to the call for independence, and its first constitution was the most radical and democratic document passed of all the initial state constitutions.

The first Pennsylvania Constitution of 1776 protected community rights, established elected officials as servants of the people, and established transparency in government. It recognized that corporations and charters “of perpetuity” were dangerous in the power they could amass and that corporate power could be used against communities. It created a Council of Censors of elected representatives, not appointed officials, and allowed that Council the right to immediately correct any laws that were not beneficial to citizens. It divested land from the Penn family to the Commonwealth, and it changed the formerly private, exclusive College of Pennsylvania to the public University of the State of Pennsylvania. The first Pennsylvania Constitution revoked the Bank of North America’s charter, issued paper currency, and created a land bank accessible to all. By these actions, as noted in the textbook, the first constitution:
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Allowed more people more control over their own affairs than ever before Allowed greater access to the political process than ever before Allowed for the democratization of many elements of the nation’s financial and economic systems Allowed political and economic control to be wrested away from arbitrary privilege and power

II. Pennsylvanians are living under a system of government that they have resisted–one that systematically denies people the right to a local community selfgovernment. An Emerging American Minority Nullifies Democracy While the democratic victories of Pennsylvania inspired its rural residents, the Pennsylvania “gentry” soon began work to lessen the effects of the new democracy. Dubbed the Federalists, these elite men did not want a government run by and for the ordinary people. In addition to believing that they knew better how to manage government, the elite also feared the loss of their personal wealth. The first Pennsylvania Constitution’s measures to equal the playing field by creating public universities and land banks signaled a threat to men accustomed to holding positions of power and influence. Additionally, public protests and actions like Shays’ Rebellion escalated the misgivings of the affluent. The elite classes were indignant over the demands of the “commoners” for a democratic government. Each group had a very different philosophy of what government should be: The wealthy elite Federalists wanted a government as an insulator to protect their property interests, while the ordinary citizens, the AntiFederalists, wanted a government that protected and secured their individual rights. The push and pull between the wealthy elites and the ordinary citizens over these differing views of government lasted 10-12 years, eventually resulting in the erosion of democracy.

Nicholson noted that this dichotomy of government function still exists today: rural agrarian interests and mercantile interests are generally opposed to each other, a principle clearly illustrated in Pennsylvania as communities currently struggle against multinational corporations on issues like drilling, mining, and animal factory farms. Much of CELDF’s work is with rural communities that are used either as extraction areas or dumping grounds to enrich the metropolitan centers of the elite. The democratic first Pennsylvania Constitution was already in place when the Articles of Confederation, the first “constitution” of the United States, were passed in 1778. The Articles of Confederation united the 13 states into a decentralized league of independent sovereign states rather than under a strong central federal government. While rights were not yet represented for everyone, the Articles of Confederation did preserve local government. The United States Constitution of 1789 The 1789 Constitution instituted a counter-revolutionary coupe that greatly affected the rights of local communities. The new Constitution insured that property rights ruled over individual rights; it was drafted as a means for the elite to control the power of legislation. The Constitution’s Federalist framers feared the revolt of the poor, and worried that, if in control, the common people would vote for a redistribution of property, something these wealthy gentlemen certainly did not want. Notes kept by James Madison during the secretive closed-door sessions of the Constitutional meeting reveal much discussion of the Anti-Federalist working-class people as ignorant and incapable of good decision–and included that wealthy landowners’ rights needed to be preserved. Government under the Constitution differed greatly from that originally created by the American Revolution. Unlike the earlier Articles of Confederation, the Constitution created a centralized national government modeled after England’s aristocratic model. It introduced a commerce clause that placed all national trade decisions into the purview of central governments and out of local control, and a contracts clause that removed corporate actions from public governance. It also officially legalized slavery, which persisted due to unequal representation given to slave states. The Bill of Rights was tacked on as a political tool to secure the acceptance votes of the Anti-Federalists; though it appeared to insure rights to all, Price observed that no one who didn’t already have those rights gained them from the Bill of Rights. Thus, with the ratification of the 1789 Constitution, the promise of democracy established through the American Revolution was basically overturned within 13-14 years, enabling the elite to use paper and law to create the illusion of democracy to establish a permanent “debtor” class reliant upon the wealthy. As Nicholson pointed out, this system still exists today in many forms including student loans, credit card debt, and the housing mortgage crisis. The Second Pennsylvania Constitution The purpose of the second Pennsylvania Constitution of 1790 was to bring it in line with the federal constitution to echo the Federalist model. The new Pennsylvania constitution removed much of the previous local control, instead establishing a

bicameral legislature allowing a Senate to keep check on the House of Representatives. It created the office of a Governor with supreme powers–the very same model as under former British rule. The elected Council of Censors was removed and in its place a Supreme Court was established, thereby replacing elected representatives with appointees. It placed the election districts in the hands of legislators, allowing for the first gerrymandering of voting districts. The word and idea of “community” disappeared from the Constitution. Instead, democracy was replaced with the enablement of the elite to protect their wealth and business interests.

The changes under the federal and new state constitutions were understood and felt by the people and eventually trouble ensued. Uprisings by western Pennsylvania farmers in the Whiskey Rebellion and the German Americans of the Fries Rebellion in Bethlehem both came as a result of harsh taxes exacted by the U.S. government upon struggling citizens who had little, if any, representation in those decisions. Not unlike the experiences of protestors today labeled as eco-terrorists, propaganda in the media belittled and marginalized Pennsylvania’s earliest protestors as traitors and insurgents. Both movements were put down by military force authorized by the 1789 Constitution. Rather than recognize the real reasons behind these efforts of resistance, the new government instead removed the right to democracy from the people by force. This oppression of democracy continued into the industrial revolution of the 1800’s, when workers became even more disenfranchised from participation in public life and the political process due to long work hours and lack of education. A “Reform” 1838 Constitution and the Gilded Age Constitution of 1874 – Present A constitutional convention was held in 1837, resulting in a new Pennsylvania Constitution that further eroded the rights of individual citizens and communities. The new constitution removed county representation in the legislature; districts were instead decided by the legislators based on population, not community boundaries, thereby removing unique community representation at the state level and reducing self-government opportunities. The new constitution also specifically denied the right to vote and hold office to those of African-American descent as racial tensions mounted throughout the state. Though it added an amending process to the state constitution, it kept the power within the government by allowing only legislators to call for the process, not the people. It also institutionalized corporations, granting them greater power through the state to increase and protect their wealth. Charles Ingersoll, an eminent attorney of that time, recognized the dangers of corporate power and spoke at the 1837 convention, arguing against corporate rights. “It is a great mistake to suppose that charters of corporate rights are more sacred than personal rights,” said Ingersoll, according to the textbook. Unfortunately for the citizens, Ingersoll’s arguments went unheeded. The Rise of Corporate Personhood The Civil War and the Abolitionist Movement in the 1860’s eventually led to the thirteenth, fourteenth, and fifteenth amendments to the U.S. Constitution. Although

the intentions of these amendments were to transform the Constitution into a rightsprotecting document, the fourteenth amendment opened the door for corporations to claim personhood and all the Constitutional rights that came with it. The rise of corporate personhood continued after the Civil War, with the 1870-1880’s beginning the “modern era of constitutional protections and constitutional doctrines,” according to Nicholson. Pennsylvanians still labor under these laws, as the Commonwealth’s current constitution is largely the same as that drafted in 1874. The principle of “Dillon’s Rule” came into existence during this time, further removing self-government from communities. In 1819, the U.S. Supreme Court arbitrarily “invented” the difference between private and public corporations in the Dartmouth Case. A later ruling in 1868 by John F. Dillon, a former corporate railroad lawyer who eventually served on the Iowa State Supreme Court, determined that local communities have no inherent right of local self-government and that the state will act in its place. Dillon likened the relationship of a community to the state as a child to a parent, granting the state sovereignty over the community. Dillon’s Rule, as it was called, eventually became the default legal code for communities across the United States, allowing state preemption over local communities that continues today. Nicholson observed that laws like Dillon’s Rule were created on arbitrary decisions rather than based on justice. These laws serve to box us in not just legally but mentally as well, causing us to believe we can’t do anything to resist unjust laws. Their impacts are profound on our thoughts and actions. Pennsylvanians Organize Under the Constitution of 1874 The 1874 Pennsylvania Constitution amended the suffrage rights by race, as accorded by the fifteenth amendment to the U.S. Constitution in 1870. It also included more complex language concerning corporations, institutionalizing them in the constitution and specifically naming railroads and canals. Another important addition was the concept of “taking private property,” which provides corporations compensation for any losses sustained through public works. The late 1800’s saw the rise of organized labor along with the rise of industry. Strikes across the country began in 1877 as laborers rebelled against the unfair practices of work for no pay and dangerous working conditions. But just as in the rebellions of the past–Shays, Whiskey, and Fries– the strikes were eventually put down by military force, this time by Union troops returning from duty during the Reconstruction period after the Civil War. Despite domination by corporate interests, the resistance of the people continued. A labor dispute between Carnegie Steel Corporation and its workers union resulted in the Homestead Strike of 1892, a major struggle over the recognition of unions. Despite an initial victory by the workers over Carnegie’s hired Pinkerton security agents, the strike was eventually quelled by the Pennsylvania National Guard, casting the steelworkers into decades of exploitation under virtual corporate rule at work and within their community. It is notable to see who the laws supported in these contests: It was not the average citizens fighting for their right to fair labor treatment, but the corporate interests

who could legally call upon military support to put down the rioters–demonstrating that our political system is in place to protect the privileged and wealthy. Fake reform in the 20th century The many attempts to push back against an oppressive system eventually led to the Progressive Era. The turn-of-the century Progressive Movement sought to improve society in many ways, including political reform and more direct control over government. To achieve that end, the Progressives developed the idea of municipal Home Rule, a way to restore government to communities. However, Home Rule was not as popular in Pennsylvania as might have been expected, in part due to the established elite and middle class citizens’ fears that the large influx of immigrants would take over their communities. Although Home Rule was established in 1972 after the 1967-68 Pennsylvania Constitutional Convention, only 70 municipalities of the possible 2,000 currently operate under Home Rule, changing little in the structure of Pennsylvania’s government. Price led a review of cases that exemplify the results of a Pennsylvania Constitution that protects property and economic interests above the rights of people. These examples included the 1948 deadly smog incident in Denora that killed 20 people and injured thousands, the state takeover and relocation of Centralia in 1992, the citizenopposed restart of Three Mile Island in 1985 after the 1979 reactor incident, the withdrawal of state and federal assistance in the 2009 water contamination of Dimock through drilling operations, and the 2012 eviction by force of the residents of the Riverdale Mobile Home Park without fair compensation. The Function of Regulatory Agencies Surprisingly, regulation originated as a corporate need, not as a means to protect people or the environment. In response to unwanted taxes and fees levied by towns along their rail lines, the major railroad operators asked the federal government to provide regulation that preempted local laws. The resulting federal regulations and licenses through the Interstate Commerce Commission worked beautifully for the railroads: they cancelled out all local issues through preemptive regulations and also cut out any smaller competitors unable to pay for the new licenses. It proved to be an effective way to silence the communities and insulate the railroad corporations from the public. The new railroad regulations sounded tough but were not. They were illusionary regulation, something that sounds good but actually does little. Pennsylvania’s Act 13 is similar illusionary regulation; though it is touted as tough legislation, its loopholes, gag orders, and variances deem it as otherwise, and citizens have no recourse from damages because the law has been followed. Despite popular belief, explained Nicholson, regulation is not put in place to protect people. The Pennsylvania Department of Environmental Protection’s job is not to get tough and protect the environment; it is to facilitate the permitting of business and industry and also serves as a barrier between the people and the corporations inflicting the damages. Regulation is legislation grounded in commerce that creates a rigged system for citizens, who consequently are forced to play by corporate rules, said Nicholson. He pointed out that legislation grounded on the ability to control commerce often ends

up differently than intended, because it is easy to later strip out any beneficial elements. III. Securing our right to local community self-government requires the creation of a new Pennsylvania Constitution that elevates that right above the claimed “rights” of commerce and property. Needed: A People’s Convention to Rewrite the Pennsylvania Constitution The point of the Workshop’s extensive review of American and Pennsylvanian history is to learn what has gone wrong in the past in order to make it right for the future. Through this review, it becomes evident that we need a people’s constitution that works for the people, not a constitution that works for the government and corporations. Pennsylvania has passed many preemptive laws restricting communities from having meaningful, sustainable, protective laws, mainly in regard to the necessities of life: food, water, and energy. Current law legalizes harm to communities, and worse, makes it illegal to create sustainable communities because it is against the law of commerce. Some examples of current preemptive laws include:
• • • • • • • • • • •

Liquor code Anthracite coal mining Banking Code Municipalities planning code Forestry Agriculture Mining Agribusiness operations and genetically modified seeds Agriculture, Communities, and the Rural Environment (ACRE – Act 38) and preemption of unauthorized local agriculture ordinances Water Withdrawals Act 13 – oil and gas drilling and local ordinances

Corporate privileges and rights first surfaced in 1886, and though the U.S. Constitution does not contain the word “corporation” within it, corporations now enjoy the same rights as people. Nicholson presented several cases where people lost their rights to corporations, concluding that the bottom line is that rights intended for people under the Constitution are being used against us in favor of the corporations. Because corporations have attorneys, lobbyists and funds to influence government, corporate rights now prevail above the rights of the people living within a community.

The Pennsylvania Community Rights Network (PCRN) The concept behind the Community Rights Network is to end the unquestioned acceptance of the rules we have been given and to develop new ideas that serve the people. Launched in Pennsylvania last year, the hope is that Pennsylvanians will embrace the Community Rights Network movement. As Price asked, “Who better knows a community than the people who live there?” The best-informed citizens for the community are its residents, not professional politicians. Local citizens should be present in the discussions and decision-making processes of what happens within their boundaries.

Rights-based laws have been passed in 160 communities in nine states across the United States, and in over 100 communities in Pennsylvania. The idea is for communities to eventually form county chapters to serve as hubs providing legal, educational, and organizing expertise toward positive and sustainable practices. These county chapters can then band together into state networks, moving toward a constitutional convention. It should be noted that there is no long-term intention for the Community Rights Network to become a national or statewide bureaucratic network working on large-scale policies; the real work should remain at the community level to decide community issues. Getting Out of the Box CELDF has been working with communities through the Community Rights Network for several years to create rights-protecting laws that are beyond state preemption. This is not an attempt to create individual “city states” that can do as they wish, but to have the local government serve as intended–to serve the people in a community. It is designed to end preemptive state or federal laws that allow a corporate third party to enter with a permit to destroy the community of the people. Nicholson emphasized that CELDF only works on laws to expand equal rights to all, not to limit them. CELDF does support state and federal laws if they support rights for all; local communities can only have the authority to legislate if they are not denying anyone or any other class’s rights. He also noted that CELDF does not exist to tell communities what to do and will only act as facilitators. Additionally, CELDF can provide support to communities through legal services in the event of litigation. Price presented examples of communities that have worked to regain community government through the development of comprehensive plans. Examples of both successful and unsuccessful community efforts were given, with both presenters making the point that even though there have been losses in these efforts, they still work to create a different dialog within a community and will underscore what the community values. For communities struggling against an oppressive system of government that does not work in their best interest, the Community Rights Network provides a way out of the box to a self-governed future. It strives to return the right of self-government to communities, and it includes all groups and all issues. It is non-partisan. It is about inalienable rights for people now and for future generations.

As Price emphatically concluded, “It is not about who you voted for president–it’s whether you think your kids should be poisoned or not, it’s whether you think you should be able to live in a community you will be happy to pass on to your grandkids, it’s whether or not you believe you have the right in your community to determine what the place is going to look like in sixty years.” For more information on the Community Environmental Legal Defense Fund, the Community Rights Network and Democracy School, including an online course, see

Written by Ann Pinca, March 2014

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