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See Peter Kellman, You’ve Heard of Santa Clara, Now Meet Dartmouth, Defying Corporations, Defining Democracy 89 (2001) (explaining that “[a]n important component of republican philosophy is that a republican form of government requires an educated populace. These republicans wanted to insure that a college education would be available for their children, and that the content of education would be determined by a public process, not a private one”) (emphasis in original).

48 For a case history of how the Commerce Clause was wielded in the 1880’s by oleomargarine corporations and the Courts to strike down state laws regulating the manufacture and sale of oleomargarine, see Jane Anne Morris, Baby NAFTA 1-3 (2002) (On file with Authors). As Morris concludes, the Commerce Clause has served as the template for international trade agreements that empower international trade tribunals to nullify local, state, and national laws in the name of corporate commerce.

49 Philip B. Kurland and Ralph Lerner, eds., The Founder’s Constitution, Vol. I 39-40 (1987).

50 Carl J. Mayer, Personalizing the Impersonal: Corporations and the Bill of Rights, 41 Hastings L.J. 577, 658-59 (March 1990).

51 The work of the people of these United States to eliminate the status of blacks as property, and to secure rights for blacks, was obstructed by the judiciary in the name of the Constitution. See Dred Scott v. Sandford, 19 How. 393, 15 L.Ed. 691 (1857) (striking down the Missouri Compromise because it deprived slave owners of their property without due process); See also, Plessy v. Ferguson, 163 U.S. 537 (1896) (upholding a Louisiana segregation law against a constitutional challenge).

52 The passage of the Fourteenth Amendment, however, did not end Southern - or Northern - discrimination against blacks. “For it must be remembered that, during most of the past 200 years, the Constitution as interpreted by [the Supreme Court] did not prohibit the most ingenious and pervasive forms of discrimination against the Negro.” Regents of University of California v. Bakke, 438 U.S. 265, 387 (1978) (Marshall, J., concurring). The Executive Branch was equally responsible for this denial of rights: “When his segregationalist policies were attacked, President Wilson responded that segregation was ‘not humiliating but a benefit.’” Id. at 394.

53 42 U.S.C. §1983.

54 Harman v. Daniels, 525 F. Supp. 798, 799-800 (W.D. Va. 1981) (“Legislative history indicates that Congress enacted [the Civil Rights Act] pursuant to the Fourteenth Amendment. . . and for the express purpose of ‘enforc(ing) the Provisions of the Fourteenth Amendment’. . . The Fourteenth Amendment is the ‘centerpiece” of the statute. . . and the umbrella of Section 1983 extends no further than its provisions”); See Mitchum v. Foster, 407 U.S. 225, 238 (1972) (declaring that Congress enacted the statute pursuant to the Fourteenth Amendment "for the express purpose of 'enforc(ing) the Provisions of the Fourteenth Amendment’”); Monroe v. Pape, 365 U.S. 167, 171 (1961); See also, Poirier v. Hodges, 445 F. Supp. 838, 842 (M.D. Fla. 1978). Section 1983 was thus a remedial act, adopted for the “the preservation of human liberty and human rights.” Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 684 (1978) (recognizing that §1983 extended a “remedy to all people, including whites” and that the section was “so very simple and really reenact[ed] the Constitution”). See also, Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 617-18 (1979) (declaring that §1983 “authorizes a cause of action based on the deprivation of civil rights guaranteed by other Acts of Congress”); Maine v. Thiboutot, 448 U.S. 1, 5 (1980) (explaining that “the §1983 remedy broadly encompasses violations of federal statutory, as well as constitutional law. . . [and that it] was intended to provide a remedy, to be broadly construed, against all forms of official violation of federally protected rights”); Dennis v. Higgins, 498 U.S. 439 (1991) (stating that “as a remedial statute, [§1983] should be ‘liberally and beneficently construed. . . against all forms of official violation of federally protected rights’”).

55 As a result, as early as 1873, corporations were wielding the precursor of §1983 against municipalities. See Northwestern Fertilizing Co. v. Hyde Park, 18 F.Cas. 393, 394 (No. 10,336) (CC ND Ill. 1873).

56 See Carol R. Goforth, A Bad Call: Preemption of State and Local Authority to Regulate Wireless Communication Facilities on the Basis of Radiofrequency Emissions, 44 N.Y.L. Sch. L. Rev. 311 (2001) (listing a range of scientific and technical studies that have examined the health impacts caused by radiofrequency electromagnetic radiation); See also, V.B. Ogai et al., Effect of Low Intensity of Electromagnetic Radiation in the Centimeter and Millimeter Range on Proliferative and Cytotoxic Activity of Murine Spleen Lymphocytes, Biofizika, May-June, 2003 (48(3): 511-520); Electromagnetic Radiation: WHO Studies Health Effects of Mobile Phones, Cancer Weekly, June 17, 1996 (declaring that “there have been studies in Sweden and the United States. . . which indicated a link between health effects and electromagnetic fields”).

57 Dr. Sheldon Benjamin, Testimony before the Zoning & Planning Committee of Newton Board of Alderman, May 15, 1991 (http://www.emrnetwork.org/schools/md_caution.pdf).

58 Leisy v. Hardin, 135 U.S. 100, 128 (1890) (Gray, J., dissenting).

59 See, e.g., Meyer v. State of Nebraska, 262 U.S. 390 (1923); Kovacs v. Cooper, 336 U.S. 921 (1949) (declaring that the “police power of a state extends beyond health, morals and safety, and comprehends the duty, within constitutional limitations, to protect the well-being and tranquility of a community”); Stone v. State of Mississippi, 101 U.S. 1079 (1880) (declaring that “[a]ll agree that the Legislature cannot bargain away the police power of a State. ‘Irrevocable grants of property and franchises may be made if they do not impair the supreme authority to make laws for the right government of the State; but no Legislature can curtail the power of its successors to make such laws as they may deem proper in matters of police . . . . No one denies, however, that [the police power] extends to all matters affecting the public health or the public morals . . . .No Legislature can bargain away the public health or the public morals’”); State v. Walmsley, 162 So. 826, 836 (La. 1935) (declaring that

“[n]either the Legislature nor the people themselves can bargain away the power to regulate the public health and morals, or legislative discretion concerning such regulation, and the power is inalienable even by express grant. It is elementary and fundamental that the state’s police power cannot be bartered away by contract; and that the clauses of the Constitutions, guaranteeing due process of law and vested or contract rights against impairment, have always yielded to its proper exercise”).




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