Sunday, January 24, 2016

Building Labor’s Constitution

Guest Blogger

For the Symposium on the Constitution and Economic Inequality

Kate Andrias

In recent years, in the face of the Great Recession and skyrocketing inequality, economic justice movements among low-wage workers have gathered steam.  Take the “Fight for $15”, which began with a few hundred workers in New York, but is now national in scope. Fast food workers, airport and retail workers, federal contractors, home health aides, and adjunct professors all now demand substantially higher wages and a union.  The campaign has pulled off strikes in cities across the country.  It has had stunning success in raising local and state minimum wages, while shifting the terms of national debate.
The Fight for $15 and other low-wage worker campaigns are making rights-based claims: they demand higher wages, better conditions, and unions, as of right.  They use tactics similar to those of earlier rights-based social movements: marches, civil disobedience, and mass protests.  But unlike many movements on both the Left and Right, these worker movements make almost no appeal to the Constitution.

Why not?

The problem is not the lack of a blueprint.  Scholars have explained how the Constitution could be read to support rights to decent employment and unionization.  Those arguments rest on the First, Thirteenth, and Fourteenth Amendments, as well as the Constitution’s overall structure, purpose, and history.  The arguments don’t have much support in current doctrine.  But other successful social movements, past and present, have invoked the Constitution even when their aspirations ran contrary to the ruling doctrines of constitutional law.  And for good reason. The Constitution is a source of inspiration, and arguments grounded in it carry special force in our political discourse.
Why, then, don’t worker movements today make constitutional arguments?  Because they think such arguments won’t work—and courts give them good reason to think not.

As much as scholars emphasize the importance of the Constitution outside of the courts, in our legal culture, constitutional arguments are primarily judicial arguments.  Even when constitutional claims are directed to elected officials, courts often end up reviewing their validity.

U.S. courts are not good venues for labor.  The history of judicial antagonism toward the labor movement is long and storied. It dates back over 100 years, when judges frequently enjoined workers’ collective action using conspiracy and antitrust law, while striking down protective employment legislation under a liberty of contract theory.  And court hostility to worker movements is no historical relic.  In recent years, labor cases have proved fertile ground for the development of corporate-protective First Amendment doctrine.  Meanwhile, judges continue to apply conspiracy law and other civil and criminal provisions against collective action by workers in new and surprising ways.
Indeed, the problem goes beyond the hostility of particular judges. The deepest aspirations of the labor movement are ill suited to court-derived constitutional rights, as currently conceived. In interpreting the Constitution, courts have tended to protect preexisting property and contract rights, to reinforce a strong distinction between the public and private spheres of life, and to embrace only incremental change.  For the labor movement, each of these judicial commitments poses a significant challenge.
Finally, a more fundamental conflict exists: A commitment to labor rights represents a commitment to democratizing control over workers’ lives, and more broadly over the economy and politics. The goal of labor law, at least from the perspective of the most utopian elements of the labor movement, is not only to guarantee individual rights, not only to secure freedom for workers from abuses of employer power, but also to enable workers to participate in the formation of conditions that structure their lives.  At bottom, workplace collective action seeks to transfer power over decisionmaking from the employer to the collective. Similarly, when acting in the political sphere, the labor movement seeks to democratize decisionmaking, to shift political power away from corporations and elites.  Appeals to courts are in substantial tension with these efforts.  Courts are elite institutions. And court definition of constitutional rights is largely non-democratic—at least under our current system of judicial supremacy.
Against this backdrop, it is no wonder the contemporary labor movement avoids the Constitution.  Defending (and losing) constitutional claims before courts could set back incipient campaigns for labor rights, while simply bringing such claims could undermine arguments for democratic decision-making.

But the fact that worker movements have legitimate reason to eschew court-defined constitutional rights does not mean that the project of constructing a labor constitution need be abandoned. One could imagine an alternative world in which constitutional argumentation on behalf of labor rights would have more purchase—a world in which the Constitution might be read to provide a right to a union and to collective bargaining, to decent wages and benefits, to basic dignity and a measure of democracy at work.
For that world to exist, however, more of the citizenry, and more of the decision-making class, would have to be favorably disposed toward those goals.  That is, a prerequisite to the usefulness of formal constitutional arguments is receptiveness to the substantive goals of those arguments. In that sense, current low-wage worker movements are in fact making constitutional arguments.  Not big-C constitutional arguments—not arguments adverting to aspects of the Constitution or even to values expressly denominated constitutional—but small c “constitutional arguments”—arguments that aspire to shift the basic terms of the political and legal order we inhabit.

Consider, again, the Fight for $15. The campaign’s primary target is the fast food industry, which is made up of non-union, minimum-wage workers, many of whom work multiple jobs and live at the poverty line. They are employees-at-will who lack protection against termination, as well as any ability to set the terms and conditions of their employment.
The Fight for $15 rejects much of the system of labor relations that has been in place since the New Deal. That is, the campaign does not seek to win union elections at a handful of restaurants and to bargain incremental changes through private collective bargaining. Instead, the campaign demands a significant wage increase and a union for all fast food workers. In so doing, the campaign contends that the level at which a union should exist is not local but industrial and national. It asserts that the state should serve not as a neutral arbiter but as guarantor of worker rights. It contends that workers’ wages and working conditions should be determined not by the market to ensure economic efficiency, but by the collective to ensure human dignity.  In short, the Fight for $15 and similar campaigns are seeking to universalize labor rights—both the right to work with dignity and the right to participate in economic and political decisionmaking.
In order to advance this substantive vision, low-wage worker campaigns are enacting new local laws and pushing for new regulatory interpretations. They are seeking new minimum wage ordinances, new interpretations of the meaning of “employer” and “employee”, and new statutory and regulatory protection for workers previously excluded from labor law. Through legislative work, protests, strikes, and social media, they are seeking to persuade the public and elected officials of the rightness of their demands.

Such law reform and social change efforts are essential prerequisites to the development of court-based constitutional rights. Without the political and legal changes the movements urge, it is inconceivable that common law courts—faithful to precedent, incremental in approach, drawn from the elite—will adopt the constitutional arguments that progressive constitutional law scholars urge.  For this reason, defending and expanding ongoing statutory and regulatory reform efforts, may, for now at least, be as important as debate about where in the Constitution to lodge labor rights.  In the end, this small c- “constitutional” effort is the constitutional change that prepares the ground for big C-Constitutional change.

Kate Andrias is Assistant Professor of Law at Michigan Law School. You can reach her by e-mail at
kandrias at

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