Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The labor movement has long pined for the constitution, but the story of constitutional protection for workers’ collective rights is one of disappointment.
The peak moments of constitutional intervention into union activity have been moments of hostility: most famously, early 20th Century courts invalidated scores of statutes that aimed to insulate workers’ collective action from employer retributions. When workers sought affirmative constitutional protection for their collective activities, the reception has been lukewarm at best.
With this history in mind, I join Richard Ford in the view that, when it comes to workers’ ability to engage in collective action to improve their lives, the Constitution is not the most likely source of progress for the 21st century. I also join Ford in thinking that progress for workers in the 21st Century, just as in the 20th, will depend on political and legislative action, and that what we need the constitution to do, in the main, is not to interfere.
Today, substantive due process is no longer an impediment to workers’ collective activity, and the Court long ago found room in the Commerce Clause for federal regulation protecting unions. One major contemporary impediment to advancing workers’ collective rights, however, has constitutional roots: the preemption of state and local law. (There may well be other constitutional hurdles in the months and years ahead. The possibility that employer speech rights will be implicated by amendments to the Employee Free Choice Act, and that non-delegation arguments will be made against the proposed interest arbitration provisions of that bill, are two of the more obvious possibilities.)
Preemption in the labor context is robust: any state or local law that “arguably” touches on a matter governed by the National Labor Relations Act is invalid. Attempting to find room within the very narrow exceptions to this doctrine, states, counties and cities have made modest attempts to modernize the rules of union organizing. Nearly all of these efforts have been invalidated on preemption grounds.
More important than the state and local laws that have been struck down, however, are those never attempted. Given the mismatch between the contemporary organization of the economy and the contours of our federal labor law, the possibility for – and the call for – experimentation is obvious. How about allowing “minority” unions which bargain solely for their members? How about mandating labor-management committees in all workplaces of a certain size? How about, in the name of giving workers not only a “free” but an informed choice on the union question, allowing unions and management to negotiate collective bargaining agreements prior to the organizing campaign? What about banning the permanent replacement of striking workers? Real experimentation of this sort is flatly prohibited by preemption rules, so local governments don’t even try. But this kind of experimentation could yield significant results and teach us a great deal about the implications of different courses for reform.
Opening up the possibility for state and local experimentation in labor law makes sense for a set of reasons independent of the particular impact that reforms would have on workers’ collective rights – including the possibility that experimentation would point us toward a more tailored and context-sensitive legal regime that better advances the interests of both employers and employees. I do not have room to discuss these reasons here. With respect to the collective rights of workers – the relevant topic for this forum – several observations are important. Most obviously, with less federal preemption, states and localities would be free to move in any number of directions. Some would legislate to expand protections for workers’ collective activity, others would attempt to restrict that activity. Common law claims would also be back in play. Here, unionism could be attacked (on the grounds, for example, that it constituted tortious interference with contract) or defended (employees discharged for attempting to organize could sue for wrongful discharge on the ground that the terminations were in contravention of public policy).
As a practical matter, the severe limitations of the federal regime (probably even a post-Employee Free Choice Act regime) mean that it would be much easier for states to make things better than worse. In many states, rates of unionization are so low that even an outright ban would not have a terribly large effect.
Nonetheless, defining and then designing an optimal preemption regime will require careful attention. If we intend the regime to facilitate experimentation while also ensuring that some basic protections remain in place for all employees, federal law will need both to allow for state innovation and to establish a floor – or baseline – of collective rights. The Constitution could fulfill this role: for example, the associational rights contained in the First Amendment might be read as precluding states and localities from simply banning unionization and related forms of collective action. But a new express preemption provision in the federal statute itself is the more likely, and better, bet.