The American labor movement has been revitalized in the past few decades. Detached at its outset by American exceptionalism from the ideology that supported European movements, and content to rest upon its success in obtaining the Wagner Act, it settled into a defensive mode following World War II, failing to move beyond its traditional strategies or build alliances with the progressive forces of civil rights and feminism. But labor is now demonstrating new energy and imagination, organizing aggressively among previously unrecruited workers in firms such as Starbucks, Amazon, and Walmart, and among previously excluded groups such as agricultural workers, domestic workers, gig workers, and public employees.
In Constitutional Clash: Labor, Capital, and Democracy, Kate Andrias documents various features of labor’s revival. She then argues that these efforts are not merely advocacy for a particular group of Americans, as extensive as that group may be, but also a reconceptualization of our constitutional and administrative order. With respect to constitutional rights, she identifies labor’s demand that the right to unionize should no longer be seen as the creature of statute, but as a fundamental entitlement of all employees, as it is in the U.N. Universal Declaration of Human Rights. Intrinsically related, and thus equally fundamental, is the right to strike. Labor leaders also insist on free speech in the workplace, not only as a necessary adjunct of the right to organize, but also to provide workers with personal autonomy and the opportunity for self-expression. They demand that the arbitrary and oppressive practice of at-will dismissal be replaced by due process protection. Going further, Andrias perceives labor’s minimum wage demands and associated calls for paid sick time, parental leave, and vacation time as potentially grounded on a constitutional right to minimal basic needs.
Andrias is aware, of course, that the current Supreme Court will not grant any of these rights and is, in fact, moving in the opposite direction, undermining current statutory rights with contrived interpretive stratagems. She confronts this issue directly, arguing that business interests have captured the Court and used it to impose a competing constitutional vision. That vision builds on employer free speech claims that limit labor laws, expanded protection of property based on the Due Process and Takings Clauses, a new-found non-delegation doctrine, and even a revival of the long-abandoned liberty of contract from the Lochner Era. Because the Court is unlikely to change in the foreseeable future, labor knows it must rely on a version of popular constitutionalism. Its alternative vision of constitutional rights will thus be articulated and instantiated through social mobilization, statutory enactments, and private contracts.
These rights, if implemented in any form, would represent a revolutionary change in our legal system. But the reconceptualization of our administrative system that Andrias perceives in labor’s new initiatives is even more far-reaching. She begins this part of her analysis conventionally, noting the narrow interpretation of the Wagner Act and other statutes by current administrative agencies, most notably the National Labor Relations Board. In fact, administrative law scholars regularly point to the NLRB’s adamant refusal to deploy its rulemaking power and its consequent reliance on case-by-case adjudication as the classic example of agency capture or timidity. But Andrias then discerns, in labor’s current efforts, a truly transformative approach to the way we administer the very basis of our economic system.
This approach can be described by beginning with the cry of “Socialism!” that conservatives level at those who favor more stringent regulation of American business. While often little more than name calling, the intellectual grounding of the accusation is Frederick Hayek’s Road to Serfdom. Hayek’s central argument is that socialism, which he correctly defines as a system of economic administration where the state owns the means of production, inevitably requires central planning, which in turn leads to oppressive and perhaps totalitarian government control. His account is dishonest, however, because he simply ignores the fact that ownership and control are not necessarily connected. This is something he clearly knew, since it was the central insight of a famous work of economic scholarship published just a decade before his own, Berle and Means’ The Modern Corporation and Private Property. Once their insight is acknowledged, it becomes clear that economic policy does not consist of a dichotomous choice between central control and the free market, but rather the familiar four-box grid for describing the interaction between two independent variables, in this case public versus private ownership and public versus private control.
© Edward L. Rubin, 2024.
The first cell in the grid is the one Hayek identifies as socialism, where the government owns and controls the means of production. The diagonally opposite cell, where private parties own and control the means of production, is the current system in the United States, with the debate between progressives and conservatives focusing on the extent to which these ownership and control functions should be regulated. But it is also possible to move along the public ownership axis from public control to private control. This cell in the grid (public ownership and private control) is one that Hayek knew perfectly well, since it was the policy that the Labour government in Britain (where he was living) adopted in the years between the time he published his book and the time he wrote the preface to the paperback edition. Again, he dishonestly ignores this option, but Andrias identifies it as one of the themes of labor’s current effort. She does not perceive this effort as endorsing the Labour Party version of public ownership and private control, which was based on independent management boards, but rather the version discussed by Carole Pateman, namely worker democracy. Labor’s current efforts include the demand for a voice in the management of their employing firm, particularly in areas that affect their own working conditions. In the U.S., this is likely to be implemented, if at all, by administrative regulation rather than the more comprehensive means of public ownership, but it represents the entry of the company’s workers into a decision-making process now regarded as the exclusive preserve of private owners.
It is also possible to move along the public control axis from public ownership to private ownership. This cell (public control and private ownership) is often described as corporatism. It is common in many democratic nations, such as Finland, the Netherlands, and Japan. Andrias identifies current labor initiatives to obtain mandatory sectoral bargaining, where the government requires employers and unions to establish working standards for an entire industry, as implementing this approach. While labor’s business antagonists will be quick to echo Hayek’s charge of socialism in response, it is not socialism, but an alternative and potentially more effective means of administering our system of private enterprise.
Given the results of the 2024 election, the labor movement will need to continue its efforts to reach out to larger constituencies, particularly among the disadvantaged, and continue to seek innovative approaches to the challenges it faces. Labor leaders would do well to devote serious attention to Professor Andrias’ article.
