For the Balkinization Symposium on Joseph Fishkin and William Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022).
Kate
Andrias
Fishkin
and Forbath are right that we should invoke the Constitution to build a more
democratic and egalitarian political economy—not only because the Constitution
is a powerful rhetorical tool in political debates, but also because,
notwithstanding its antidemocratic features, the Constitution both enables
and requires a more democratic, equal, and inclusive society than the one we
now have. Fishkin and Forbath are also right to argue that the left should not
cede the Constitution’s meaning to the Court and that legislators and social
movements should challenge the Court’s anti-egalitarian and anti-democratic
jurisprudence. By reminding Americans of a lost tradition, Fishkin and Forbath
make an important and timely contribution, unsettling assumptions that the
Constitution has always had a fixed, pro-business cast and that it is
exclusively the province of courts.
Yet
Fishkin and Forbath also largely leave for others the difficult questions about
what it would mean for progressives and liberals to take up their call today. What
exactly should a constitutional argument for “democracy of opportunity,” or for
particular reforms, look like? What’s the relationship between the high-level
claim that the Constitution requires a more equal and democratic society and constitutional
text, history, structure, precedent, and other accepted (or rejected) modes
of constitutional argumentation?
How should members of Congress or the executive proceed when their views on
constitutional political economy diverge from that of the Supreme Court? Should
the power of the Court be cabined by institutional reforms such as those examined by the Biden
administration’s Supreme Court Commission? Should federal judges approach constitutional
questions about political economy differently from members of Congress? What
role do state legislators or state courts play? And how about the efforts of
social movements to advance a more democratic understanding of the
Constitution—what are the pitfalls and obstacles they face? These questions are
beyond the scope of Fishkin and Forbath’s argument, but tackling them is
essential to making progress on their important charge.
Take
workers’ rights, for example. One of Fishkin and Forbath’s central prescriptions
is to “build and maintain robust secondary associations like unions” in order
to “challenge the political and economic dominance of the few” and to “open new
channels of democratic politics that can circumvent the political power of the
oligarchs and their allies”—aims they identify as part of the anti-oligarchy
strand of the democracy of opportunity tradition. In their essay in the Boston
Review, they also emphasize defending unions as a key component of
“repairing the First Amendment.” It’s worth underscoring that unions are just
as critical to other strands in the democracy of opportunity tradition,
including racial and gender inclusion and building a robust middle class, not
just the anti-oligarchy focus. Unions have the capacity to bring workers
together across racial, ethnic, and gender divides in service of shared class
interests, and they are critical to improving material conditions for all workers,
particularly less powerful workers, while also advancing economic and political
inequality more generally.
Fishkin and Forbath deftly build
on the historical work of other scholars like James Pope and Laura Weinrib to show that past workers’
movements and their allies invoked the Constitution to support the right to
organize and strike, and they gesture to what revitalizing these arguments
might look like today. But their argument operates at a general level, urging
that justices and others embrace an “understanding of the constitutional
necessity of countervailing power” when considering the First Amendment and labor.
This is right, but only a start; the arguments for robust constitutional
protection for labor rights—for what the dissent should have said
in Janus and
for a constitutional right to organize, strike, and picket—are actually much
stronger, and more consistent with traditional modes of constitutional
interpretation and even prior Court precedent, than they suggest.
As Justice Murphy wrote in the
1946 case of Thornhill v.
Alabama when
striking down a state law that criminalized labor picketing, labor speech
deserves particular protection under the First Amendment: “[L]abor relations
are not matters of mere local or private concern. Free discussion concerning
the conditions in industry and the causes of labor disputes appears to us
indispensable to the effective and intelligent use of the processes of popular government
to shape the destiny of modern industrial society.” Or as Justice Frankfurter argued in dissent in an early case involving a
constitutional challenge to union dues, “To say that labor unions as such have
nothing of value to contribute to . . . the electoral process[] and no vital or
legitimate interest in it is to ignore the obvious facts of political and
economic life and of their increasing interrelationship in modern society.” In
short, justices and other constitutional interpreters have in the past, and should
again, embrace a more egalitarian understanding of the
First Amendment,
in the area of labor and beyond—one that recognizes the economic, political,
and social inequalities that inhibit or enhance expression.
Moreover, a constitutional vision
for labor rights going forward requires close attention to the efforts of
contemporary on-the-ground worker movements. Such examination reveals that many
worker movements are, in fact, challenging existing law and attempting to
redefine labor activity like strikes as fundamental rights. And they are doing so in novel
ways that can help shape future constitutional argumentation. Consider the
remarkable union victory of Amazon workers in Staten Island. In taking on the behemoth
company, the workers, through their own newly formed union, challenged Amazon’s
right to authoritarian control at work and offered a vision for rights of speech
and democracy in the workplace.
Also important is close analysis
of the obstacles to building a progressive constitutional political economy. Fishkin
and Forbath predict
that in the future “conservatives will attack any new
legislative protections for workers with novel legal arguments.” In fact, that
is already happening. The Supreme Court’s recent trifecta of anti-worker cases
(Janus,
Epic
Systems, and Cedar
Point) is only part of the problem. In courts
across the country, business groups are challenging democratically enacted
statutes not only under the First Amendment, but also with novel uses of the
Takings Clause, the Dormant Commerce Clause, the Supremacy Clause, due process,
equal protection, and non-delegation, all in an effort to stymie state and
local efforts to protect workers’ rights.
Meanwhile, deep ideological
divides pervade even the Democratic Party when it comes to labor. After all, in
the period after the 1960s Democrats didn’t only abandon constitutional
arguments about political economy, as Fishkin and Forbath lament; many also
abandoned the working class altogether. As employers took advantage of weak
labor law and worked to deunionize their workforces by permanently replacing
workers who went on strike, moving production to non-union areas and subcontracting
to non-union firms, and refusing to recognize new groups of workers who sought
to organize, Democratic majorities in Congress offered little opposition. Today,
despite significantly more support for labor within the Democratic Party and despite
efforts at regulatory innovation by agency officials, key Democrats and many
liberal elites continue to be tepid in their support for workers and for labor
law reform. Few observers think the Protecting the Right to Organize (PRO) Act
is likely to pass, at least in the near term.
The paucity of constitutional
argumentation by Democrats about labor must be understood in this context. When
legislators do not meaningfully support workers’ efforts to unionize, strike, and
win fair employment rights, it is wholly unsurprising that they don’t make constitutional
arguments about those rights. They haven’t just forgotten to do so.
In short, Fishkin and Forbath are
right to call for a new progressive constitutional political economy generally
and for labor rights in particular. But as they recognize, changing the reality
on the ground, whether regarding labor rights or other progressive ends, will
require struggle and organizing; employing constitutional rhetoric is only one
small part of the picture. It will also require tackling the hard questions
about what a progressive constitutional vision actually entails.
Kate Andrias is Professor of Law at Columbia Law School. You can reach her by e-mail at kandrias@law.columbia.edu. This post is slightly adapted from an essay cross-posted at the Boston Review.