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