Academic journal article Texas Law Review

How the Workplace Constitution Ties Liberals and Conservatives in Knots

Academic journal article Texas Law Review

How the Workplace Constitution Ties Liberals and Conservatives in Knots

Article excerpt

How the Workplace Constitution Ties Liberals and Conservatives in Knots * THE WORKPLACE CONSTITUTION FROM THE NEW DEAL TO THE NEW RIGHT. By Sophia Z. Lee. New York, New York: Cambridge University Press, 2014. 328 pages. $29.99.


On the last day of the Supreme Court's last term, in Harris v. Quinn,1 a majority of the Court lined up with the "right-to-work movement" in the latest phase of the latter's long-running battle with organized labor over mandatory union fees. The Court held that for Illinois to require home-care workers to pay an "agency fee" to a union that represented them in collective bargaining, pursuant to a majority vote of their coworkers, would violate the First Amendment rights of workers who opposed the union.2 The holding in Harris was narrower than the unions had feared, and hinged on the home-care workers' unusual joint-employment relationships.3 Yet Harris revealed the deep judicial skepticism that unions face in attempting to defend the agency fee arrangements that help underwrite their financial viability and their ability to represent workers. Harris is also a testament to the right-to-work movement's success in building a constitutional case for the "right to refrain" from supporting unions.

Harris was thus a victory for the anti-union right and a serious blow for the labor unions that have been stalwarts of the post-New Deal Democratic coalition. Ironically, however, if the right-to-work movement has its way and the right to refrain from paying for union representation is eventually extended to all public employees, and even to private employees, it will do so partly on the basis of constitutional precepts for which liberals fought during their own long-running battle to expand the rights of employees, especially against discrimination.

That is among the provocative lessons of this outstanding book of twentieth-century legal history. Professor Sophia Lee explores the evolution of two visions of what she calls the "workplace Constitution"- two conceptions of the federal constitutional rights of employees-that have been contending for judicial approval since the New Deal. The liberal workplace constitutionalists fought chiefly to deploy constitutional arguments to combat discrimination in private-sector employment, especially in the decades before the Civil Rights Act of 1964. The conservative workplace constitutionalists proclaimed the rights of individual workers as against collectivist trade unions and especially against mandatory union fees. Lee explores the intertwined jurisprudential underpinnings of the liberal and conservative variants of the workplace Constitution, which have swirled beneath and around some of the most elemental constitutional controversies of the mid-twentieth century and beyond. The famously confounding "state action" problem is at the heart of the story, and Lee brings that problem and others to life through vivid histories of lawmaking and litigation that feature sophisticated legal analysis-both that of the participants and Lee's own.

The opening sentences of the book make a bold claim: "Today, most Americans lack constitutional rights on the job. Instead of enjoying free speech or privacy, they can be fired for almost any reason, or for no reason at all. This history explains why."4 But that opening claim might both overstate and understate what the book delivers. The lack of constitutional constraints on arbitrary employer power in the private-sector workplace has its roots in the state action requirement: nearly all of Americans' federal constitutional rights run only against state action, not against purely private infringement.5 That limitation on employees' constitutional rights originated long before the post-New Deal period that Lee describes. But what Lee's book does deliver is a gripping and richly illuminating history of the passionate and partly successful post-New Deal litigation battles to expand workers' constitutional rights and the scope of state action in the workplace. …

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