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Joseph Fishkin and William E. 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 antidemocratic 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 here, 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 in their book, The Anti-Oligarchy Constitution, 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 here, 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.
“Labor has always made sharp and ringing claims about rights, many of them with deep roots in constitutional text. ”
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 Frank Murphy wrote in the 1940 case Thornhill v. Alabama when striking down a state law that criminalized labor picketing, labor speech deserves particular protection under the First Amendment: “labor 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 Felix 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 inter-relationship 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 early April. 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 nonunion areas and subcontracting to nonunion 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 Act (PRO Act) is likely to become law, 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. She teaches and writes in the fields of constitutional law, labor law, and administrative law. She previously served as special assistant and associate counsel to the President of the United States, and as chief of staff of the White House Counsel's Office.
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