For decades, interpretation of the U.S. Constitution has been in the hands of the conservative-dominated Supreme Court. Predictably, the vision of the document that has emerged in the Court’s jurisprudence is largely regressive and hierarchical. This is particularly true when it comes to organized labor. As then-AFL-CIO general counsel Craig Becker observed in his testimony to President Biden’s Commission on the Supreme Court, labor simply cannot get “a fair hearing before the Court.”
But hostility to labor has not always been a feature of constitutional interpretation. There was a time in American history when the Constitution was understood as a pro-labor document, which raises the tantalizing prospect that it could be understood that way again.
What would it take to recover that vision? How would such a vision relate to the Constitution’s broader democratic purpose? And what would it mean for political actors to accept this vision in the face of a hostile Court? To help us think through these questions, and to help keep the flame of a pro-labor Constitution alive during these dark days, the LPE Blog has invited some of our favorite labor lawyers and scholars to share their perspectives.
No Constitutional Democracy Without Economic and Social Democracy
Kate Andrias & Willy Forbath
As President Trump has embarked on an authoritarian consolidation of power, his administration has undertaken a host of bluntly illiberal, anti-democratic actions against workers—from rounding up thousands of immigrant workers for deportation to firing hundreds of thousands of federal employees and stripping collective bargaining rights from roughly one million more. Meanwhile, over the past decades, the conservative majority on the Supreme Court has issued a series of anti-labor opinions, and right-wing organizations are bringing more and more aggressive challenges to the constitutionality of what’s left of our labor law, arguing that a variety of constitutional provisions and precepts sharply limit union rights and constrain the ability of federal and state governments to protect workers.
What should the response be from labor and from those who care about workers’ rights? We think it must include a return to the democratic promise of the Constitution—both its substantive commitments to democracy and its traditions of legislative and popular constitutionalism. That entails restoring the long-held view that lawmakers have the constitutional power and duty to help build and foster the institutions working people need to secure a broad distribution of wealth and power, and thus to sustain the material basis for self-government. It means returning to a tradition of constitutional argument that holds that the kind of political economy the Constitution requires is one that gives workers enough economic and political clout to gain decent livelihoods and real authority over their industries and the larger political economy. This tradition calls on legislators to advance such measures even in the face of a hostile Supreme Court. And it recognizes that workers’ rights to organize and strike are constitutionally protected and necessary to democracy; when workers strike and organize in the face of hostile laws and decrees, this tradition holds that those laws and decrees violate workers’ fundamental rights.
This democratic constitutional tradition has meant different things over time. But by the early twentieth century, it meant roughly this: We can’t keep our constitutional democracy without economic and social democracy. We can’t have a republic composed of wage slaves and industrial overlords. Mounting class domination spells mounting political domination and the demise of our republican form of government.
All this remains true today in our post-industrial, information and service economy. And now that many of the nation’s oligarchs are publicly aligned with a brutally authoritarian White House, the links between restoring liberal democracy and demanding social and economic democracy are hard to miss.
We have been here before. This is not the first moment in which business interests have mobilized the Constitution against workers. From the late nineteenth century through the 1920s, judge-made law functioned as a powerful weapon against labor. Federal courts treated collective action by workers as illegal—initially under criminal conspiracy theories, later under civil conspiracy doctrines, and eventually under antitrust law. At the same time, the Supreme Court and lower courts struck down hundreds of democratically enacted state and federal laws providing for minimum wages, maximum hours, and union protections.
Despite the Supreme Court’s insistence that it was the sole and final interpreter of the Constitution, workers and their allies refused to accept this antidemocratic constitutional order. Instead, they articulated and advanced an alternative constitutional vision—one rooted in democracy, nondomination, and a more equitable distribution of economic and political power. They argued that the Constitution’s commitment to democracy required labor rights. They contended that the First Amendment protected workers’ rights to organize, protest, and engage in collective action—a “right of agitation,” as the American Civil Liberties Union described it at the time. Likewise, the Thirteenth Amendment was widely seen as “Labor’s Glorious Amendment.” It enshrined workers’ collective freedom to quit work and bargain as one body, much as capital could consolidate its power in the business corporation. Capital championed its account of constitutional political economy; labor forged a rival account.
Having a rival constitutional outlook, with the right to strike at its heart, was invaluable. For half a century, the most consequential strikes were flatly illegal, much as many are today. From the late nineteenth century through the mid-1930s, courts, along with politicians and leading news outlets, allied with capital; they cast striking workers and their unions as outlaws, deserving the state violence and jail time meted out to them. Fighting back, labor depended on the moral and political support of an alternative constitutional account of the rights of working people and the duties of government. Like many other actors on the national stage, labor sharply contested the Court’s claim to the final say on the Constitution.
The Great Depression marked a decisive turning point. In the face of devastating economic conditions and massive labor unrest, Congress and President Franklin Delano Roosevelt—and eventually the Supreme Court—came to embrace something of the labor movement’s constitutional vision. In 1935 Congress enacted the National Labor Relations Act (the Wagner Act), which protects the rights to organize, bargain collectively, and strike, and created the National Labor Relations Board to enforce those rights. Most observers expected the Supreme Court to invalidate the Act. But against the backdrop of widespread labor unrest and mass sit-down strikes—and on the heels of Roosevelt’s landslide reelection in 1936 and his threat to expand the Supreme Court—the Court famously reversed course and upheld the Act. The Court even made tentative gestures toward recognizing labor rights as “fundamental” to the democratic system.
President Roosevelt set out his version of this constitutional tradition in his 1944 call for a “Second Bill of Rights.” He argued that genuine freedom could not exist without economic security and independence, famously warning that “necessitous men are not free men.” Economic deprivation, he insisted, created the conditions under which authoritarianism could flourish. “In the first World War,” the president reminded Americans, “we came closer [than ever before] to national unity” via a strong government role in making the industrial economy work for all. But armistice and peace brought a “rightist reaction” and a rollback to the old laissez-faire. If “such reaction should develop” again, Roosevelt warned, “if history were to repeat itself and we were to return to the so-called ‘normalcy’ of the 1920s—then it is certain that even though we shall have conquered our enemies on the battlefields abroad, we shall have yielded to the spirit of Fascism here at home.” Roosevelt’s proposed rights included the right to a useful and remunerative job, healthcare, and decent housing.
What lessons does this history offer for the present moment? First, it underscores the necessity of recovering and embracing the Constitution’s democratic commitments as interpretive guideposts. Labor’s greatest achievements in the polity and the workplace occurred when unionization, dignified working conditions, and a share of authority over industry were understood as fundamental to the Constitution and its embrace of democracy. Second, the history highlights the importance of articulating a clear alternative to today’s authoritarian constitutional vision—one that speaks to both rights and institutional structure, embedded in broader efforts to democratize the country’s political economy. Finally, the history reminds us that courts are not the primary locus of constitutional struggle.
We see this again today. Think of the most consequential forms of resistance occurring in our own moment, like the Minneapolis general strike of January 23, supported by all of the city’s key unions despite the strike’s uncertain legal status for many participants, in an effort to stave off growing authoritarianism and the violent use of force by the federal government. If past is prologue, then organizing efforts and strikes with this breadth, and with these democratic goals and ambitions, will be critical to laying the groundwork for a democratic constitutional vision to prevail. While judicial acceptance may come, democratic constitutional meaning is forged first and foremost through inventive organizing, mass mobilization, and imaginative legislative action.
Why the Constitution Protects the Right to Organize
Jennifer Abruzzo, Keith Bolek, Andrea Hoeschen
If we are to revive a pro-labor vision of the Constitution, we first need to step back and consider the document’s fundamental purpose. The Declaration of Independence cements the unalienable right to “life, liberty, and the pursuit of happiness.” The Constitution fulfills this promise by creating a democracy where “we the people,” together, govern ourselves; where all of us have the freedom to participate fully in social, economic, and political life.
Our Constitution protects these freedoms through its amendments. These amendments identify fundamental rights, such as our First Amendment right to free speech and assembly; our Fourth Amendment right to be secure in our homes and our persons without unreasonable searches and seizures; our Fifth Amendment right to not be deprived of our liberty without due process of law; our Thirteenth Amendment right to not be subject to slavery or involuntary servitude; and our Fourteenth Amendment right to not be denied liberty without due process or equal protection of law. The Declaration of Independence, the structures of self-government set-up by the Constitution, and our enumerated rights work in concert, operating like a contract with the American people to protect their inalienable human rights to life, liberty, and the pursuit of happiness.
Yet in this contract, the Constitution also includes an amendment that has been lately overlooked: the Ninth Amendment, which establishes that the enumerated rights are not exclusive.
Jurists have tied themselves in knots in their infrequent efforts to give meaning to the Ninth Amendment. But workaday attorneys draft and interpret similar clauses in contracts hundreds of times a day. Every competent attorney knows the difference between a clause that says, “Party A only gets the rights set forth in this contract” and a clause that says “Party A’s rights include but are not limited to the rights in this contract.” The Ninth Amendment is analogous to the latter. It is a savings clause that affirmatively protects the unnamed inherent rights that naturally flow from and are necessary to effectuate our inalienable rights and our specifically enumerated rights within the Constitution.
This commonsense conclusion is apparent to anyone who reads it and takes it at face value. In the acclaimed play What the Constitution Means to Me, author Heidi Schreck offers an array of metaphors for the Ninth Amendment that would probably puzzle a dour “originalist” (the Ninth Amendment is “like my shoes that will take me into the future”) but which illustrate the plain-as-day principle that the drafters did not want the document’s meaning to die when they did. Rather, they wanted a savings clause that would ensure the application of the Constitution to evolving experiences of pursuing life, liberty, and happiness in America.
This understanding of the document’s text and purpose, we believe, helps explain why our Constitution should be interpreted to protect the affirmative right to organize and bargain collectively in labor unions. Without these basic rights, life, liberty and the pursuit of happiness are unattainable and unsustainable. Labor unions help support and assist working families in protecting their inalienable rights. They are also miniature constitutional democracies, which encourage free speech, accountability, debate, and dissent, and which have structure, elections, and due process. They are a model for other governing structures, including state and local governments. And, most importantly, they are your power, your community, and your family.
As collectives of we, the people, unions are “indispensable to the effective and intelligent use of the processes of popular government to shape the destiny of modern industrial society,” as the Court said in Thornhill v. Alabama. The Constitution should protect the “fundamental right” of workers to engage in “self-organization and to select representatives of their own choosing for collective bargaining or other mutual protection without restraint or coercion by their employer,” as the Supreme Court held in Jones & Laughlin.
It is true that the judiciary is unlikely to adopt this view of the Constitution in the short term, but that is not the end of the story. A future Democratic administration, for example, could take important steps to see that this vision is translated into reality. It could implement proposals like those contained in the report of President Biden’s Task Force on Worker Organizing and Empowerment, on the understanding that these recommendations are constitutionally favored. A future administration could ensure that personnel decisions—like appointments to the NLRB, the staffing of agency lawyer positions, and the nomination of judges—contribute to the development of a pipeline for people ready to advance this constitutional vision. We could imagine, as well, a future administration re-examining the validity of limitations on worker organizing—such as restrictions on secondary boycotts and sympathy strikes—in light of this understanding of the Constitution.
Pursuing these steps would not merely be a way to improve the lives of working people, though it surely would. It would also help ensure that our democracy continues to rest on the Constitution’s foundational principles of individual liberty, genuine equality and the rule of law.
A Free-labor Demosprudence Demands Shrinking the Court’s Ideological Footprint
Darin Dalmat
A constitutional vision for the labor movement must begin with the movement itself. Many workers, union leaders, and scholars are better positioned to illuminate the movement than I am—a mere union lawyer. But, having been asked for my thoughts, I provide them here.
The labor movement believes that workers do not check their personhood at the workplace door. Instead, workers remain as fully human at the workplace as they are with their families, friends, and neighbors. They are always people, of inestimable value, made in the image of God; you’s, not it’s; moral subjects, not commodified economic inputs; ends in themselves, not mere instruments of others’ designs. This basic belief in the humanity of working people implies three things.
First, workers should have a meaningful say in their work lives. Democracy mustn’t stop when the timeclock starts but must continue throughout the workday, which consumes most of our waking hours. A meaningful say doesn’t mean the only say. None of us gets our way wholehog in political life, work life, or life generally. We have to engage with each other and reach either consensus or compromise. Still, our voices matter.
Second, to make this process work, workers need to be able to collaborate with fellow travelers, engage with those who may disagree, and find constructive paths forward. We must associate.
And third, workers need to be able to say no—we don’t consent, so we’re leaving. If voice and association don’t bear fruit, exit must be viable.
The law calls these points bargaining (voice), organizing (association), and striking (stopping work). Any workplace that fails to honor these three points—voice, association, and exit—operates, in some measure, as forced labor. Its opposite is free labor: a system that respects voice, association, and exit.
For over 160 years, our Constitution has prohibited forced labor. The words of the thirteenth amendment are plain: “Neither slavery nor involuntary servitude … shall exist within the United States, or any place subject to their jurisdiction.” Given slavery’s very particular history, it may be hard to hear its echoes today. But “involuntary servitude” doesn’t bear the same historical reference. Its words speak more broadly and outlaw forced work of all kinds.
Three-quarters of a century passed between the passage of the 13th Amendment in 1865 and the Wagner Act in 1935—labor’s “Magna Carta,” the first generally applicable labor law. During those seven decades, workers and their representatives advocated constitutional rights to free labor. This vision would have precluded strike injunctions, invalidated state legislation scuttling the right to strike in favor of wages and working conditions deemed fair by courts (regardless of workers’ views), shredded yellow dog contracts (which required employees not to join a union as a job condition), and buried the old law that made collaborating with others to improve working conditions unlawful conspiracies, not protected association. While this free labor vision obtained occasional reception in Supreme Court dissents, it fell almost entirely on deaf judicial ears.
Thus, when it came time to defend labor’s Magna Carta, progressive lawyers sided with the government in arguing that the Commerce Clause, not the Thirteenth Amendment, provided the best constitutional defense. On this view, strikes were problematic because they interrupted commerce; to keep commerce flowing uninterrupted, business and the public needed to avoid strikes and, for that reason, to give labor regulated rights in return. The Court adopted this vision in NLRB v. Jones & Laughlin Steel (1937), an approach that deradicalized the Wagner Act from the start.
Courts, and particularly the Supreme Court, typically lag constitutional visions articulated by those of We the People they feel compelled to hear. Reviving a free-labor vision must therefore begin with workers themselves believing that the abolition of involuntary servitude calls to us today and includes us, too, as workers who have the right to be free—to have our voices heard, to stand in solidarity with others, and to stop work when we don’t consent. To have any hope for a new jurisprudence, we must begin with a renewed free-labor demosprudence. We must believe in ourselves again. Unlike a century ago, when we acquiesced to exemptions that left domestic and agricultural workers—predominantly Black then, and still often women and people of color today—from our labor laws, we must also recognize that believing in ourselves means believing in all of us, across race and gender lines. With economic inequality returning to Gilded Age levels and AI threatening to commodify workers yet further, now is as good a time as any to believe in the inestimable value of our voice, our solidarity, and our consent.
That project may take generations. What should our next administration do to move the ball? The most helpful task may be to repeal the 1925 Judges’ Bill, chuck the Supreme Court’s certiorari power, and restrict the Court to deciding cases presented to it. Today, the Supreme Court controls its own docket. Nominees to the Court, knowingly or unknowingly, misrepresent basic Court operations in claiming they simply wait for cases or controversies with no agenda control. Instead of deciding cases, the Court now decides legal questions of its own choosing. Doing so gives the Court immense control to shape the law to its taste. If the Court were more like other federal courts, bound to hear all cases presented to it and to resolve cases in their entirely, it would, perhaps, be more attentive to facts, less subject to ideological propulsion, and, well, much more court-like.
Certiorari-stripping wouldn’t solve labor’s problems tomorrow. But it would create more space for workers to develop a free-labor demosprudence. The Norris-LaGuardia Act, which strips federal jurisdiction to enjoin strikes, has been one of workers’ most powerful tools. Where courts take up less space, workers have more freedom to act. The most effective court reform may well be one that shrinks the Court’s ideological footprint by limiting its agenda-setting powers.
The views expressed above are the author’s alone and should not be attributed to the AFL-CIO.
The Uniform Bankruptcy Clause and Labor’s Role Safeguarding Democracy
Alvin Velazquez
According to the Uniform Bankruptcy Clause of the Constitution, “Congress shall have Power… [t]o establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.” This clause, perhaps unsurprisingly, does not often receive much scholarly or judicial attention. For example, Lawrence Tribe’s 1381-page treatise on constitutional law contains two paragraphs on the bankruptcy clause. Historically, the Uniform Bankruptcy clause served as a soft constraint on Congress’s bankruptcy power. Courts have interpreted the uniformity requirement to mean that Congress cannot pass a law that discriminates against the citizens of one state in favor of citizens from another. In other words, that uniformity is geographic and not personal.
It is important to note, however, that uniformity of legal form does not mean equality of power. For example, when companies go into bankruptcy, they can set aside collective bargaining agreements. In fact, they have done so with impunity. Corporations can and have sought bankruptcy protection primarily for the purpose of setting aside collective bargaining agreements, and courts have set aside, with ease, union arguments that corporations are acting in bad faith. Interestingly, courts dealing with motions to reject collective bargaining agreements also reject labor law’s definition of good faith bargaining. Under labor law, parties are required to negotiate in good faith. They are not required to arrive at an agreement. In bankruptcy, courts blame unions for “stonewalling” when they bargain in this matter, and require them to accept concessions for the court to deem the union’s conduct to be in good faith. In this way, bankruptcy law favors corporate power. That needs to change, otherwise courts will continue to undermine labor’s role as a bulwark of democratic order.
Would it be possible to interpret the Uniform Bankruptcy Clause in a manner that would be more labor friendly? Yes, and the application of a Law and Political Economy lens to the uniform bankruptcy clause can help illuminate this new doctrinal path. The predominant theory in bankruptcy law is the law and economics-informed Creditors’ Bargain. In synthesis, the Creditors’ Bargain holds that the primary purpose of bankruptcy law is to preserve the bargain that the parties agreed to pre-bankruptcy. There are two problems with that approach. First, it replicates the inequality of bargaining that exists outside of bankruptcy by separating uniformity from equality. Second, and more significant, is the fact that the Creditors’ Bargain, and bankruptcy law writ large, does not completely account for the special role that unions have in preserving our constitutional order. Even Sec. 1113 of the bankruptcy code, which was meant to protect CBA’s from being set aside and inspired objections that Congress privileged collective bargaining agreements, failed to accomplish this objective because the Code does not require adjustments to CBA’s to be narrowly tailored. Instead corporations have significant discretion to decide the scope of relief that they, in their business judgement, need from already existing CBAs.
For that reason, I argue in “Bankrupting Labor Power” (forthcoming Stanford Law Review), courts should provide radical debt forgiveness for labor unions who commit torts that arise from organizing campaigns or strikes. A bankruptcy code that allows corporations to discharge torts, such as those arising from sexual harassment claims or claims arising out of the tortious sale of opioids, can also be applied in a way that protects a certain amount of labor strife and the tortious conduct that may arise from such strife. Courts should do so, I argue, because the balance of equities favors the protection of collective bargaining, which helps safeguard democracy in a way that other tortious behavior does not. As I construct the argument in that Article, it occurs within the context of a court’s application of the bankruptcy code; but this same argument could be applied to our understanding of labor’s role in our constitutional order.
Courts have not interpreted the Uniform Bankruptcy Clause in a way that protects parties with greater political bargaining power from those that are weaker. In fact, the Code enables the protection of creditors who have a security interest on property. It also outlines in great detail the priority of unsecured creditors and determines who gets paid first, second, etc. However, if bankruptcy courts are to be a bulwark for the preservation of the democratic order, then they, as well as higher courts, need to change their understanding of what it means to have a uniform bankruptcy code as defined by the Constitution. The bankruptcy code – including Sec. 1113, which ironically was meant to preserve union power – in practice has given the protection of property, not democracy, high priority.
If the Uniform Bankruptcy Clause has the potential to mean something less technocratic and more political, it could mean that our Constitution should require uniformity between the powers it allocates to capital management and the powers it allocates to labor. Using the Constitution to reallocate power between labor and capital has been done before in Latin America. For example, Mexico’s 1917 constitution ranked worker claims ahead of secured creditors, or those with a property interest. Doing so in America may require a novel interpretation of the uniform bankruptcy clause, but not a novel mindset regarding power dynamics between corporations and labor unions. As the Court observed in Vegelahn v. Guntner, for instance, labor should be able to form combinations to combat capital. If the Uniform Bankruptcy Clause is to be a tool for protecting our Constitution, then it is only fair to treat labor as well as capital uniformly. That means either allowing labor to superimpose its own collective bargaining agreements on management, or otherwise imposing uniformity in a way that allocates power between corporations and labor equally in bankruptcy proceedings. In that way, labor can begin to realize Sec. 1113’s potential and fight corporate power on equal footing. Our democracy may soon depend on it.
