A project of the Alliance for Democracy created by Jan Edwards of the California Center for Community Democracy

Tapestry of the Commons - Essays, Resource Materials and Handouts

How the Ruling Elite Blocks Democracy and Commons Protections

Against great odds, sometimes the People, in the U.S. (or in another country), are able to use the democratic process (or another process) to pass laws protecting the Commons and the Common Good (ie; labor, health, civil rights, culture, the environment or the local economy.)

This Protectionist Legislation is considered an illegal trade barrier and a violation of Free Trade.

The Ruling Elite have systems in place to eliminate such laws that threaten their wealth and power. These systems replace the will of the many with the will of the few.

There are several mechanisms available for the overturning of laws but they share some basic traits:

* All involve removing the decision making power from the people and placing it with a Special Forum where conditions for a re-match are more favorable to the wishes of the elites.

* All involve a tiny group of un-elected, unaccountable people who have been given the power to overturn the law.

* The reason given for overturning the law often is that it constitutes an Illegal Trade Barrier..

For laws passed in the U. S. corporate executives and corporate lawyers sue in court. Laws are challenged in federal courts and ultimately in the Supreme Court where 5 members of the unelected, unaccountable justices can overturn [declare unconstitutional] any local, state or federal law on the grounds that the law burdens interstate commerce, or on one of many other justifications. In this way it has long been common for a corporation to sue a state or the nation.

This can also trigger a Crisis of Jurisdiction.

For laws passed in U.S. and other nations corporate executives and lawyers can sue in international trade tribunals. Laws are challenged in distant, unelected, unaccountable, international tribunals where local, state or national laws can be invalidated on the grounds that the laws obstruct Free Trade, and harm Corporate and Investor Rights ( read: Profits).

* Under WTO rules, nations sue nations usually on behalf of corporations.

* Under NAFTAs Chapter 11, and Bilateral Trade Agreements (BITs) corporations can literally sue nations

* Under CAFTAs Chapter 10, the rules of NAFTAs Chapter 11 are expanded.

* Under the FTAA, (still to be negotiated and passed), The General Agreement on Trade in Services (WTO/GATS), and more and more BITs, corporations will continue to be given these rights.

This is a private, secret and supranational system of corporate justice.

The losing party has basically three choices: comply, compensate, or stonewall and suffer.

A WTO legal affairs officer

Other ways used by the elites to add laws they want or remove laws they oppose:

* Lobbying or bribing (campaign contributions) legislators.

* Writing and pushing bills through legislatures. (like the current rash of seed preemption legislation)

* Adding riders to bills as they pass through the legislatures.

* Heavily funding one side of ballot measures and referenda.

* Rewriting the corporate codes and other codes in state law.

* Ad campaigns to sway the public opinion.

Internationally:

* Conditions are placed on developing countries before aid or loans are approved. These often require overturning protective legislation. The World Bank and IMF are prime instruments for this form of elite control. [ Jan Edwards 2005]

The Rule of Property

Karen Coulter

Historical Concepts of Property and the Commons

    In 1942, British Labourite Member of Parliament Aneurin Bevan, said, Either poverty must use democracy to destroy the power of property, or property in fear of poverty will destroy democracy. This fundamental conflict between individual property rights and an egalitarian or radical democracy remains on center stage today. Its deep roots rest in historical political clashes that brought a redefinition of property, rapidly shifting it from the hands of the many to those of the few. The authority to define equates with the power to govern.

    The meaning of the word property has changed dramatically over the course of history. Most cultures of the world held property to be ones personal possessions, such as clothing, household goods and the tools of ones trade. Land, on the other hand, was held in common and often viewed as inseparable from God or Nature, denied to human ownership. Under Iroquois Confederacy law, the buying, selling and monopolizing of land was illegal and immoral. The commons concept underlay many cultures mode of community organization. These included indigenous traditions of Native Americans, West African villages, the Irish kinship-based society before the English conquest, and the more recent Mexican ejido communal land system. These cultural commons varied widely in organization, being based on clan rights, gender rights, or powers conferred on some other social group. They had differing practices regarding member participation, equity and relationship to the natural world.

    Knowing the world as a commons generated a very different reality from that held by most of us in todays ownership society. When missionary John Heckewelder scolded a Native American for grazing horses in his meadow, he heard this response: My friend, it seems you lay claim to the grass my horses have eaten because you had enclosed it with a fence. Now tell me, who caused the grass to grow? ...(T)he grass which grows out of the earth is common to all.

    The commons shapes a social system and defines human arrangements. It is not just bodies of water, acreage of land and natural resources. Examples of commons that are acknowledged today include government-owned property (e.g. public lands); natural systems such as the oceans and atmosphere; user-managed regimes such as community gardens, land trusts and Linux computer software; social networks based on gift exchange such as public libraries, and inherited information or understandings such as historical knowledge, scientific developments, and cultural traditions. Writers in The Ecologist magazine describe the commons as ...the social and political space where things get done and where people derive a sense of belonging and have an element of control over their lives.

    The more limited such shared democratic space becomes, the more inequality, ecological devastation, dehumanization and totalitarianism prevail. Anatole Anton describes the antithesis of the commons-based society: ...privatization, commodification, and the increasingly exclusive control of nature, communicative space, the social order, the political order, and the economic order that is characteristic of our time. Put directly, the seizure of common property has translated into illegitimate governing authority for an owning elite.

Enclosure as Means to Deprive and Define

    The commons has largely been removed as a keystone of democracy from the framework of U. S. cultural perception. Therefore, it is important to examine the 17th Century enclosure of the English Commons, a momentous revolution by the privileged few against the many poor. British imperialist policies went on to impose this enclosure model on the common lands of cultures around the globe. The American colonies did not escape this tumult.

    The authors of the U. S. Constitution consolidated the heritage of enclosure and ensured the primacy of private property rights over the common good in the United States. For example, the Constitutions slave system turned people into private property. While the Articles of Confederation gave states control over their economies, the Constitutions commerce clause took that control away, even denying people the right of protection against harmful property being transported into their borders. So the landed minority, using property as its tool, designed a system of governance to take charge of the majority with little difficulty. The United States has gone on to perfect the strategies, law and lore of property its privatization, commodification and appropriation to control peoples, cultures and ecosystems worldwide.

    Pierre-Joseph Proudhon, the French Anarchist (1809-1865), equated property with theft, defining property not as the simple possessions of the peasant or artisan by which to make a living, but as the sum of its abuses: competition, isolation of interests, monopoly, privilege, accumulation of capital, exclusive enjoyment, subordination of functions, individual production, the right of profit or increase, the exploitation of man by man.

********************

    Feudal society in England was characterized by strict hierarchy lords and masters over serfs; insistence on a particular religion as a means of maintaining the social order; exclusion of rights and advancement from those without property. There was also a growing resistance to these oppressions. Incorporating efforts to preserve liberty within their daily lives, new religious sects sought to democratize God; cottagers and squatters lived freely within commons, wastes and forests; urban masterless men agitators, criminals, vagabonds and beggars roamed the countryside and spread news of resistance movements. Sylvan liberty in the forests was an escape from the rule of property, as immortalized in the Robin Hood stories. Extensive forests then served as a shield for a free and mobile society while greater governmental and religious control reigned in the agricultural plains. The people of the woods were said to live without laws, government and dependency.

    The controlling few considered the commons as the nurseries of those who refused to labor for others. And so deforestation and enclosure were promoted as ways to get rid of beggars, make the land more productive in a capitalist sense, and employ thousands of idle hands. In the mid-17th Century, the ancient commons were literally fenced by the landed gentry, replacing the age-old planting practices of the many with crops for the profits of a few. The resulting push by the ruling class for universal wage slavery was advanced by both enclosure and the takeover of individual craftsmanship by new industrial technology. A person laboring for wages would be more dependent on the capitalist system, both in England itself and in its growing colonies abroad, than one who was self-sufficient and independent. This fundamental shift to dependency on capital and control originating elsewhere culminated in the current, vulturous free trade regime that now creeps into every nook and cranny on the planet.

    The English Civil war contributed to the uprooting of people and the breakdown of authority. Destructive campaigns against squatter life filled the years from 1646 to 1660, but the rabble refused to wither under the onslaught. After 1640, commoners increasingly asserted their rights through direct action.

The Diggers Resistance

    On Sunday, April 1, 1649, a group of poor men gathered on St. Georges Hill and

began to dig planting carrots, parsnips and beans as a way to claim ownership of the common lands and reject conventional piety by ignoring the Sabbath. A contemporary observer witnessed, They invite all to come in and help them and promise them meat, drink and clothes... They will be four or five thousand within ten days... It is feared they have some design in hand. The Digger colony on St. Georges Hill was just one well-documented example of many such undertakings by those in resistant occupations.

    The Diggers ordered the lords of the manors to stop cutting down our common woods and trees... for your private use (as the U. S. National Forests are now cut down by corporations for private use). After Oliver Cromwells reformist victory over the monarchy, the Diggers demanded in 1650 that confiscated church, crown and royalists land be turned over to the poor. Such statements deeply challenged existing property usurpations with the consequence that direct military intervention on behalf of private property was soon taken by the new English republic. The commoners were forced from St. Georges Hill by the end of the year.

    Sounds familiar, doesnt it? Property and rights deemed the domain of a ruling elite have long been protected by the armed military and police forces of a country. Whether we speak of peoples claims to the commons in the seventeenth century, the American colonists claims to fair governance in the eighteenth century, womens claims to voting rights and workers claims to safety on the railroads in the nineteenth century, activist claims against corporate harms to our communities, environments and economic lives in the twentieth and twenty-first centuries, the response is always the same. People acting in unison on behalf of equality, fairness, ecological sanity, worker and public health, or real democracy are brought to heel by the Rule of Law in service to property and backed by government force.

    The Diggers were accompanied in their rebellion against the elites redefinition of property by many other common folk including the Anabaptists, Antinomians, Familists and Ranters, the Quakers, New Model Army and the broader Leveler movement. These resisters put forth schemes to limit wealth and land concentration in English society. They demanded that the property of the rich be shared among the poor and redivided yearly. The Levelers reality was the commons and so they called for changes in their society that are unrecognizable in todays dominant frame of reference. They advocated the abolition of buying and selling, with the resulting absence of property in a possessive, legal sense. This would greatly reduce the need for judges and lawyers and by extension, for the coercive state. Like their counterparts in every generation, they established arrangements for everyday life that manifested vastly different values, that put in place commitments to collectivity and fairness.

    In contrast, in 1641, Sir Thomas Aston defined true liberty as knowing by a certain law that our wives, our children, our servants, our goods are our own. This patriarchal sentiment illustrates why Levelers equated enclosures and the coercive power of the state with slavery.

    In the pivotal Putney debates of 1647 the landed gentry argued these issues with the New Model Army and Levelers. Henry Ireton, a spokesman for the gentry, acknowledged, Liberty cannot be provided for in a general sense if property be preserved. As authors Linebaugh and Rediker put it in The Many Headed Hydra, The fork in the road at Putney pointed to either a future with the commons and without slavery, or to one with slavery and without the commons. The commons were a reality, not pie in the sky.

Corporate Enclosure of Modern Forms of the Commons

    The corporate form is the primary means to governing power of todays ruling class. Its mission of unlimited production at lowest cost serves nicely to reinforce class divisions and cement the property relationships set forth by the Federalist Constitutional victory. The nations founding documents asserted the primacy of private property rights over political rights of the community and the common good.

    Anatole Anton characterizes the corporation as an engine of enclosure, a device constructed to take over public goods. The process of that construction he attributes to judicial legislation, presented as apolitical. Thus, with the corporation ...a structurally antidemocratic entity was created and the way was paved to legitimate the ever-increasing swallowing up of public space within an already disempowered liberal democracy. The most far-ranging political decisions, from the uses of technology to those concerning employment and the environment, are corporatized and therefore privatized. This new kind of person begins to strut on the legal stage, claiming wider and wider constitutional rights... Rather than being seen as part of the political order, the court has ruled them outside of politics.

    Corporate enclosures affect commons as diverse as child care, the environment, family assistance, public education, language (e.g. private ownership of brand names), public health (e.g. HMOs) and federal drug research. Then there is the privatization of public knowledge, the commercialization of culture and public spaces such as privatized shopping malls and sports arenas bearing corporate names. A present focus of corporate acquisition is the water and sewage systems of communities throughout this country and abroad. Indigenous knowledge and genetic heritage do not escape the clutches of the privatizers as they go after patents to the Neem tree, Basmati rice and human gene lines.

    Lawrence Lessig, in his book, Free Culture, How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, analyzes corporate enclosures of the cultural commons such as radio, film, recorded music, cable TV and the Internet, using the tool of intellectual property rights. He contrasts permission culture... in which creators get to create only with the permission of the powerful, or of creators from the past with free culture which supports innovation by limiting the reach of intellectual property rights.

    Extremism in privatizing intellectual property has led to out-of-control technological developments, mad scientists running rampant with novel genetic combinations and nanotechnology schemes for human cyborgs part machine, part human. In Welcome to the Machine: Science, Surveillance and the Culture of Control, Derrick Jensen and George Draffan painstakingly describe this technological past and present that inexorably places the vast majority of us under the watchful eye of a minority.

    The diminished state of todays commons is neither accident nor inevitable trend. It is the consequence of deliberate and methodical intent. The fact that its roots remain invisible to so many leaves people powerless to change it. As activists our work must begin with revealing invisibilities and unveiling deceits. Only with deeper understanding can people build a sustained, effective movement to claim what belongs to us all.

    Another world is possible is a phrase with currency in many languages today. In order to bring that world into being, we need to familiarize ourselves with peoples historical struggles in various cultures, redefine property and property relationships, and renew the concept of the commons with its deep democratic promise.

Endnotes

The background materials for this article, including quotations, were largely drawn from the following sources:

Peter Linebaugh and Marcus Rediker, The Many Headed Hydra: Sailors, Slaves, Commoners, and the Hidden History of the Revolutionary Atlantic, Boston: Beacon Press (2000).

Dean Ritz, ed., Defying Corporations, Defining Democracy: A Book of History and Strategy (POCLAD), NY: The Apex Press (2001).

Derrick Jensen and George Draffan, Welcome to the Machine: Science, Surveillance, and the Culture of Control, VT: Chelsea Green (2004).

David Bollier, Silent Theft: The Private Plunder of Our Common Wealth, NY: Routledge & Kegan Paul, (2002).

Anatole Anton, Milton Fisk, Nancy Holmstrom, eds., Not for Sale: In Defense of Public Goods, NY: Westview Press (2000).

Christopher Hill, The World Turned Upside Down: Radical Ideas During the English Revolution, London: Maurice Temple Smith Publishing (1972).

George Wookcock, Pierre-Joseph Proudhon: A Biography, Toronto: University of Toronto Press (1987).

This is the first article of a two-part series on the connection between property and power.

First Published in By What Authority Spring 2005

Karen Coulter is a member of the Program on Corporations, Law and Democracy [POCLAD]

THE IMPACT OF CORPORATIONS ON THE COMMONS by Mary Zepernick

            A California-based group called Friends of the Commons defines the commons as "the vast realms of nature and society that we inherit together and must pass on, undiminished, to our children." And as many Native Americans put it, to the seventh generation.

            The "commons" is as old as the Earth itself but the term has come into use again today as a helpful way to think about various aspects of nature and society that are increasingly under assault by giant corporations and compliant public officials. Vast realms of nature and society, "the commons" is everything except what we the people choose not to include. In other words, the commons properly derives from decisions made by us, collectively -- which presumes democratic self-governance.

            It certainly wasn't a collective decision in the Enclosures of the 15th, 16th & 17th centuries, when the English commons -- lands worked "in common" by peasants for centuries -- were fenced to enable the landed gentry to pursue single crops for profit, like grain or sheep for wool -- my 1956 college textbook, A History of Civilization, described them as enterprising and ruthless capitalists!

            You may have heard this old English protest doggerel: "The law locks up the man or woman who steals the goose from the common. But the greater villain the law lets loose, who steals the common from the goose."

            The Enclosures, which someone pointed out is an old-fashioned word for privatization.

Today, "privatization" refers to turning over to corporations -- the "private sector" -- aspects of nature and society previously under the jurisdiction of government -- the "public sector," with its authority supposedly rooted in us, the public. The vast realms of nature and society are being increasingly privatized for the primary benefit of the few. However, it's not about good or bad people, good or bad corporations. The issue is who governs.

             There are two historical streams in U.S. history in this regard: one is about the decentralization of power, public decision-making, self-governance -- about democracy; the other is about the concentration of power, private decision-making, governance by the few and the corporation as their governing institution.

            The fundamental theft today is our common right of self-governance, a usurpation that enables the myriad harms and assaults on nature and society.

            During the colonial period, the royal chartered trading corporations -- like the East India and Hudson Bay Companies -- were extensions of the English monarch, institutions not only of commerce but of governance. It was through these and the crown colonies, like Massachusetts Bay and Virginia, that the colonists most felt English control.Thus it is logical that once independent from England, the founders put corporations on a short leash, through state-issued charters that defined their purpose, length of capitalization and operation, made shareholders liable for harms done, and prohibited corporations from owning other corporations. Imagine!

            For example, the Pennsylvania legislature declared in 1834: "The corporation is just what the incorporating act makes it. It is the creature of the law and may be moulded to any shape and for any purpose that the legislature may deem most conducive for the general good." The general good, the general welfare, the commons. This was no golden age of democracy, since rule by the propertied few was well established from the colonial period up to today. However, for the first several generations of US history, property organized in the corporate form was subordinate to the people's representatives -- with the few and small corporations that existed considered public, not private, institutions. Charters had teeth and were revoked when violated. 

            So what happened? The word corporation didn't appear in the Constitution, but the framers provided well for the protection of property (including slaves, though this term wasn't mentioned either). The Supreme Court first "found" the corporation in the Constitution in the Dartmouth College case of 1819. The Court, an unelected, unaccountable and elite body, declared the corporation a private contract under the contracts clause of the Constitution -- the beginning of privatizing this public institution meant to be conducive for the general good. The Industrial Revolution and the Civil War brought enormous growth in the number, size and wealth of corporations -- and the Civil War amendments expanded the rights of people:

            Ï the 13th Amendment, prohibiting "slavery and involuntary servitude" (workers at the time called the this "glorious labor amendment" and some labor organizers are currently seeking to use it to secure workers' rights to organize and speak freely on the job);

            Ï the 14th Amendment, making "all persons born or naturalized in the United States ....citizens" and providing that "no state may provide any person of life, liberty, or property, without due process of law; not deny to any person....the equal protection of its laws";

            Ï the 15th Amendment, stipulating that "the right of citizens of the United States to vote shall not be denied or abridged by the United States of by any State on account of race, color, or previous condition of servitude."

            Corporate managers, lawyers & lobbyists, seeing rights conferred on individuals, began inserting into court cases arguments for inclusion of corporations as persons entitled to 14th Amendment due process and equal protection of the laws. They succeeded in 1886, when the Supreme Court in Santa Clara v. Southern Pacific Railroad "found" the corporation in the 14th Amendment -- what is known as corporate legal personhood. Ironically, African-Americans lost their legal personhood ten years later, in the Plessy v. Ferguson ruling that ushered in half a century of segregation in the form of Jim Crow laws.

            The Court has since "found" the corporation in the Bill of Rights protections of the 1st, 4th and 5th Amendments. Corporate free speech blocks meaningful changes in electoral and legislative processes, since Court decisions in the 1970s equated political spending with speech and voided a Massachusetts law prohibiting corporate interference, including funding, in citizen referenda -- while workers drop their 1st Amendment rights on corporate property.

            Also, the Supreme Court has "found" the corporation in the commerce clause of the Constitution, voiding hundreds of local and state protective laws as being in restraint of trade, and repeatedly ruling against labor organizing and strikes. The U.S. domestic free trade zone in place for over 100 years has provided the model for the unelected, unaccountable and elite bodies, like the WTO and NAFTA, that make and enforce global trade policies.

            Thus cloaked in the Constitution and global trade regime, the corporation has once again become not only a commercial or economic institution but a governing institution. The few who wield the constitutional rights of the giant corporation, with their many compliant public officials, decide policies on investment, production, technology and work; foreign and military policy; policies on energy, agriculture, pharmaceuticals, and natural resources like water, minerals and forests; policies on welfare, health care, transportation, education and more. Thanks again to the Supreme Court, corporations can now patent anything alive except a full birth human being!

            We who have long engaged in single issue defensive struggles look around today and see that in all of these areas, conditions have deteriorated for people and Planet. Significant progress toward WILPF's longstanding central goals -- disarmament and peace; racial, social and economic justice -- will be limited at best under global corporation+government control.

             One of the most alarming developments is the growing global scarcity of water, with the supply steady (though in many places the potable supply is decreasing) while the world's population increases. This and other assaults on and scarcity of resources cannot be adequately addressed simply through the regulatory process.

            By and large, the regulatory regime shields property in the corporate form far more than it protects people and the environment. The first regulatory agency was in transportation and is emblematic of these unelected, unaccountable bodies. The Interstate Commerce Commission was created in 1887 to forestall the serious Populist challenge from workers and farmers to the abusive power of railroads. President Cleveland's Attorney General explained to nervous railroad corporation executives that the ICC was to be "a sort of barrier between the railroad corporations and the people." And Charles F. Adams, later president of the Union Pacific Railroad Corporation, wrote about the regulatory solution to the Populist threat: "What is desired is something having a good sound, but quite harmless, which will impress the popular mind with the idea that a great deal is being done, when, in reality, very little is intended to be done."

            We can take inspiration and lessons from past and present movement struggles. Abolitionists didn't demand a Slave Protection Agency. They drove freedom and rights into the Constitution. Women suffragists didn't ask men to treat them a little better. They drove their rights into the Constitution. Civil rights activists weren't content to make Jim Crow and other laws less harsh. They drove civil rights into the Constitution and into state law, and continue to protect and insist on rights, as gay/lesbian organizers are currently doing as well.

            Thomas Linzey, an environmental lawyer who is leading the shift to rights-based organizing in rural conservative Pennsylvania, points out that the Environmental Protection Agency permits poisons and regulates environmentalists. He also contends that we will not have a genuine environmental movement until the natural world has rights -- from species and trees and mountains to rivers and oceans and streams.

            In contrast to the publicly unelected, unaccountable regulatory system, the public trust doctrine is a potentially useful tool for reclaiming and protecting the commons, as explained by writer Mark Dowie, fellow at the Tomales Institute in California.

            "The public trust has a long and venerable history. It was codified back in 528 of the Common Era, when the Roman Emperor Justinian decided to gather and condense all the unpublished rules and edicts handed down by his predecessors into a unified, coherent code of imperial law. To the task he appointed a commission of ten legal experts, who delivered the Codex Justinianus in 529 and a year later its attendant textbook, known as the Institutes of Justinian, to which the emperor added a few words of his own. Among them were the following: 'By the law of nature these things are common to all mankind; the air, running water, the sea and consequently the shores of the sea.'

            "During its first millennium and a half, this edict was used almost exclusively to protect the public's interest in one very vital aspect of the commons: water, and sometimes land covered by water. As Justinian had ruled, navigable water, whether in the sea or flowing to it, was, along with the shorelines, beaches and river bottoms, the common property of a nation's citizens, owned by everyone and no one at once, an unwritten public easement protected by their steward -- the state.

            "It's a critical time for the concept of the public trust, because the commons is being enclosed in ways that were never before possible. These enclosures are crossing new boundaries, invading areas so intangible that they are rarely even recognized as part of the commons -- from the gene pools to the farthest reaches of outer space. The expansion of intellectual property rights into the rainforest, the patenting of life forms, the placement of weapons in space, the giveaway of broadcast spectra, the commodification of news and information, the commercial invasion of childhood, and the temptation to privatize almost anything are just of few of the many new threats to the commons."

            If our fundamental commons is self-governance, the most radical (root) question is: Do we really believe we are capable of governing ourselves? Or are we by nature doomed to the hierarchical power relationships of so many millennia? Cornel West said that our minds are so colonized that we can scarcely imagine what a real democracy would look like.

             Massachusetts colonists offer an example of valuing self-governance enough to struggle for it. In 1774, the English Parliament retaliated against colonial resistance activities by revoking the colony's charter giving a considerable measure of local decision-making authority. These people felt entitled to self-governance -- they had experienced something they valued -- and they rebelled when it was withdrawn.

            Ray Raphael, in The First American Revolution: Before Lexington and Concord (The New Press, New York, 2002), describes how ordinary citizens gathered in taverns and homes to plan what we today would consider a civil disobedience campaign: blocking courthouse doors and lining streets, demanding the resignations of British representatives. "Thousands upon thousands of farmers and artisans seized power from every Crown-appointed official in Massachusetts outside of Boston." According to Ray Raphael, this successful rebellion made Lexington and Concord, the "shot heard 'round the world" in the following year, a counter-revolution, with the British seeking to regain control and instead sparking a Revolution.

            If we consider ourselves capable of and entitled to self-governance, how hard are we willing to struggle to achieve it? How "We the People" answer this question will determine the fate of the commons, including life-giving water.

Mary Zepernick works with the Women's International League for Peace & Freedom

and the Program on Corporations, Law & Democracy.

Commons Sense
Community Ownership and the Displacement of Corporate Control

by David Bollier

Something curious is happening to the near-religious faith that private property and markets are the only serious tools for improving people's lives. Slowly and unpredictably, like irrepressible plant life pushing its way through crumbling pavement, new models of community-based management are sprouting forth while old models are re-discovered. Call it the renaissance of the commons, a quiet insurgency with diverse manifestations. It consists of new policy models such as stakeholder trusts, locally managed natural resources, innovations in private contracts, and bold reinterpretations of public trust doctrine in environmental law and the public domain in copyright law. But this proto-movement is not just about policy, but also about a cultural rediscovery of public collaboration. The Internet, the biggest and most robust commons in history, has a lot to do with this trend. It has provided the crucial infrastructure for thousands of commons such as websites, list serves, open source software development and peer-to-peer file sharing. This re-conceptualization of what should be public and shared -- as opposed to private and marketable -- is reaching into new territory. More citizens are realizing that public spaces and civic institutions represent a cultural commons, and are mobilizing to fight marketing in schools, the over-commercialization of sports and new forms of intrusive advertising. Others are fighting new corporate attempts to commodify and sell global water supplies, bioengineered life forms and the human genome. Such natural systems, say activists, belong to everyone and must be treated as commons. The mainstream media has not caught on to this burgeoning movement, so its features remain somewhat obscure to the general public. Yet the breadth and vitality of commons activism are impressive. The real question is whether the champions of the commons will be able to develop fuller critiques of this emerging paradigm; popularize it among public policy makers, the press and the public; and build the rudiments of a multi-pronged movement. The Tragedy Stigma For at least a generation, the idea of the commons has been invariably associated with the word "tragedy." This stereotype originated with a famous 1968 essay by ecologist Garrett Hardin, who argued that when a scarce resource is open to all comers -- a grazing meadow, for example -- the inevitable result is the over-exploitation and destruction of the resource. The "tragedy of the commons" has become one of those unfortunate phrases that stick in the mind but are fundamentally flawed. What Hardin was describing, in fact, was an open-access regime, in which a resource is essentially open to everyone without restriction. An open-access regime has no recognized authority or defined property rights. Aggressive predators can appropriate the output and sell it to others. A real commons is quite different. It consists of a distinct community managing a resource through specific rules and traditions. Resources are intended for personal use by members of the commons, not for sale in the market. An ethic of openness in a functioning community helps assure that the resource is not over-exploited and that free riders are identified and disciplined. While the catchphrase about the tragedy of the commons persists, a rich literature within political science, anthropology, sociology and economics shows that a sustainable commons is not only possible, but often more attractive than a market regime. Market actors relentlessly strive to cut costs in order to maximize profitability. In many instances, this makes them a vital force in development. But this very tendency to minimize costs often results in "externalizing" -- or shifting -- costs from companies to the environment, communities and future generations. Market prices in such cases do not reflect the fuller, long-term costs of producing a good or service. This is an important reason why a commons can be a superior regime. Members of a commons personally have to live with the "externalities" they create, so they have keen structural incentives to minimize anti-social outcomes. Varieties of Commons Just as there are many types of markets, from stock markets to auctions to lemonade stands, so there are many ways of conceptualizing the commons. Broadly speaking, the commons identifies a set of interests that are distinct from the state and the market. A good shorthand might be "we the people." The commons is about the sovereign interests of the general public, even if it is unorganized. While the state may intervene as a trustee on behalf of the commons -- to protect widely shared interests or resources -- the people have interests apart from those of government and markets. In environmental law, public trust doctrine has formally recognized this fact by prohibiting governments from seizing or selling resources that belong to the people. But the public trust doctrine is only a modest beachhead in the law, one that has never been fully developed. The unfortunate truth is that as a "market populism" has arisen to claim that markets are more democratic than governments, people in the United States have not had a rich conceptual language for expressing the "people's interests." The commons is an antidote. It offers a way to talk about how members of a defined community can access and share resources without relying on money or markets. Instead of the impersonal, take-it-or-leave-it procedures of the market, the commons is a social model based on co-production and co-responsibility. Individual voice and enfranchisement are honored, yet this participation is balanced against the larger needs of the community. And these needs are expressed through the places, history and personalities of a specific commons, not through the impersonal abstractions of money and markets. It matters a great deal whether a commons revolves around finite, depletable resources (fish, timber, water) or social networks that are "infinite" (the Internet, cultural norms). In the case of the former, guardians of a commons must take pains to assure that free riders do not over-exploit it and create a "tragedy." But when a commons is infinite, the more people that are participating, the greater the value created. There is a cornucopia of the commons. Just as a telephone network becomes more valuable as more people get telephones, so an online community tends to become more robust and valuable as more users join it. This dynamic has made GNU Linux software operating system one of the most technically advanced and stable software systems in the world despite the lack of a conventional corporate apparatus and marketing. (GNU Linux is a non-commercial, nonproprietary competitor to Windows that most computer experts agree is a superior product. It is widely used in computer servers, and increasingly for personal use.) Tens of thousands of computer programmers have contributed expertise to improving the code through a vast global software commons. The Internet has been a key factor in the success of Linux and other open source projects, but another critical factor has been a special contract provision known as the GNU General Public License, which prevents any users of the code from privatizing it for profit. This assures that the volunteers' contributions will stay within the commons, and not be siphoned away by free riders. Most commons tend to fall into four broad categories: Public assets. These are resources that the people own and that government manages as a trustee and steward. Collectively, people in the United States own the electro-magnetic spectrum used by broadcasters and wireless companies; millions of acres of public lands containing minerals, timber, oil and grazing areas; and enormous stores of federally sponsored research, reports and databases. Too often, the government gives away these valuable resources to private companies at steep discounts or for free. Common assets. These are "unowned" resources that have not been formally brought under the control of either markets or government. Examples include genetic structures, the global atmosphere, regional ecosystems and public spaces. Common assets are resources that the people own as a moral right, but which have no formal recognition in law. Frontier commons. Frontier commons are currently under siege by companies aggressively seeking to convert common assets into property and sell them in the market. Among the more prominent frontier commons are fresh water supplies of northern portions of the globe and genetic structures of life, especially the human genome, agricultural crops and indigenous knowledge. Social commons. Many commons have less to do with managing a physical resource than with pursuing a shared mission as a social or civic organism. Examples include scientific communities, Internet affinity groups and local communities. Through the exchange of gifts -- time, energy, resources -- members of social commons create special interpersonal bonds among each other, which over time are the basis for creating value in highly efficient, socially satisfying ways. Online genealogical websites and blood donation systems, for instance, are based on people freely "giving" to the commons -- and eventually reaping benefits later by dint of their membership in that specific community. The Commons and Corporate Power An embryonic movement of organizations dedicated to managing shared resources in new ways, and avoiding the liabilities of market regimes, is now emerging, sometimes in coordination with different branches of the movement, sometimes not. The strategies and styles of this eclectic movement vary. Yet the groups -- environmentalists, biotech activists, anti-commercialization advocates, open source programmers, defenders of the public domain in copyright law and others -- share a commitment to the commons as a way of fighting pernicious market excesses. One of the more interesting strategic initiatives for the commons involves stakeholder trusts, whose goal is to give all citizens a personal stake in public assets. The most successful example may be the Alaska Permanent Fund, a citizen-owned investment account that pays equal annual dividends to every Alaskan citizen. Created in 1976 at the instigation of Republican Governor Jay Hammond, the Fund has accumulated some $27 billion in revenues from oil drilling on the state's North Slope. In 2000, it generated some $1.15 billion in dividends for the state's residents, or nearly $2,000 per person. The Alaska Permanent Fund is a direct inspiration for the Sky Trust proposal (www.skyowners.org), developed by social entrepreneur Peter Barnes to help curb greenhouse gas emissions. Instead of allowing the government to give away emission permits to polluters, the Sky Trust proposal would require auctions in which companies buy a limited number of emission permits. While this would raise prices for gasoline and other carbon-burning products, it would also provide incentives for companies to reduce their carbon emissions. Moreover, consumers would be protected from paying higher prices because they would receive dividends from the Sky Trust, funded by the auctioning of emission permits. The idea behind the Sky Trust, writes Peter Barnes in Who Owns the Sky?, is "from all according to their use of the sky, to all according to their equal ownership of it. Those who burn more carbon will pay more than those who burn less." Another innovative series of initiatives aim to protect the commons of creative works and information. Increasingly, content industries are using technology and copyright law to "lock up" the digital versions of works and control how they may be used. This can be seen in the copy-protection schemes that record labels are devising to prevent people from making or sharing personal copies of CDs. Film studios want to require anti-copying technology in all electronic appliances in order to prevent the copying and Internet distribution of their movies. And book publishers are trying to devise restrictive licenses for e-books, eliminating the easy copying, excerpting and sharing that we now take for granted with paper books. Not all fights against "market enclosure" look to public policy. Some creative initiatives are trying to create functioning digital commons for cultural expression. The Budapest Open Access Initiative, instigated by the Open Society Institute, seeks to promote the self-archiving of peer-reviewed journal literature in order to create a new generation of open access alternative journals. The idea is to bypass commercial publishers who continue to raise prices for their journals, making them less accessible -- a dynamic that undermines the very basis of science as an open inquiry based on shared knowledge. A second initiative is the Creative Commons, an effort by a coalition of law professors led by Stanford's Lawrence Lessig to create a series of customizable licenses for putting works in the public domain. Currently, all new works are automatically "born" copyrighted. There is no formal means by which an author can legally put a work into the public domain or to stipulate permissible public uses of it. The Creative Commons plans to offer licenses that will allow authors to declare that their works may be used by anyone so long as it is not altered, used without attribution or used for commercial purposes, for example. An innovative aspect of the licenses is the use of "metatags" in electronic documents to help Internet users locate and use public domain material. Interest in protecting the "information commons" is exploding in other quarters as well. A new public interest advocacy group, Public Knowledge, was recently organized to defend the commons of the Internet, science and culture. And the American Library Association recently formed an Information Commons Project to enhance its efforts to ensure that information is open and accessible to everyone. "The commons" is also the banner behind a number of new initiatives to protect frontier commons. In Porto Alegre, biotech activists from more than 50 nations in February 2002 launched a treaty initiative seeking to have the earth's gene pool declared a "global commons" that is off-limits to patenting. The "Treaty Initiative to Share the Genetic Commons" will be part of a larger effort to defend the planet's biodiversity. The treaty initiative builds upon work by Cultural Survival, ETC (formerly RAFI, or Rural Advancement Foundation International) and others to protect the biological integrity of agricultural seedlines and native plants and to preserve indigenous knowledge. A Commons Paradigm In a time when the prevailing economic and policy discourse disguises markets and corporations' anti-social effects, a language of the commons helps fill a void in our cultural awareness. Talking about the commons helps shine a spotlight on market ideology and debunk it as a predestined, natural regime. By calling into question the purported benefits of the market, the commons also names the process of enclosure, the process of imposing property boundaries and market rules on shared resources and the stripping away of community control. Talking about enclosure helps link market activity with its harmful consequences. "The commons" is not just a useful critique, but also a tool for advancing a positive vision and values. It instigates a broader vector of conversation than the sterile, misleading debates about free markets ("good") versus regulation ("bad") that tend to dominate policymaking. Proponents of "the market" have a highly refined literature and analysis for their values. Why shouldn't defenders of "the commons" have an equally coherent and developed field of research and analysis? At this early stage, it is unclear how the emerging commons movement will evolve and perhaps consolidate. But one thing is clear: the scope and ferocity of market activity is rapidly expanding into every nook and cranny of nature and culture. As market imperialism intensifies, seeking to transform nature, communities and culture in new ways, the commons is likely to become a more frequently invoked organizing principle for resisting -- and for imagining better, more humane alternatives. David Bollier is author of Silent Theft: The Private Plunder of Our Common Wealth (Routledge; www.silenttheft.com) and co-founder of Public Knowledge. Multinational Monitor 2002

The Media Commons

By Jan Edwards, July 2005

They used to rob trains in the Old West. Now we rob spectrum.Senator John McCain.