Three Views of Constitutional Political Economy

Constitutional Political Economy – What Is It Good For? – On the Labor Scene, Part III of III

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William Forbath –

To recap, what constitutional political economy is good for on the labor scene is three-fold:

  1. as a movement discourse that provides moral and political legitimacy to acts of civil disobedience and law-breaking – and lends reform-minded publics and law-makers a keen sense of the stakes for our deeply eroded democracy in enacting reforms that encode a pro-labor constitutional outlook;
  2. as a source of robust accounts of substantive constitutional principles to put on the scales when defending such reforms against neo-liberal constitutional attack;
  3. and, finally, as a framework for labor movement activists, lawyers and policy-mavens to compare and argue about the practical and normative considerations favoring rival constitutional constructions for the future.

Let me close this series with the briefest of sketches of two emerging views of the way forward, with a focus on how they’re interestingly at odds on constitutional grounds.

The first account is set out as interpretive history in my work with Joey, and has found a sustained and theoretically inflected exposition by Jed Purdy in his recent Beyond the Bosses’ Constitution: The First Amendment and Class Entrenchment. The gist of this account is that Justice Alito is right.   The “political” and “economic” aspects of union activity are inseparable.   But the conclusion we draw from that insight is the opposite of the one drawn by Alito and the Roberts Court.   Ours is (very roughly) that the Constitution’s commitment to a democratic-republican scheme of government and the political equality of its citizenry – along with its aversion to oligarchy – demand a legislative framework that secures for working people ample opportunity to constitute themselves as collective political-economic actors with sufficient clout in both the labor market and the polity to go some distance in overcoming the asymmetries of political and economic power that inevitably obtain between labor and capital.   Both Joey and I, and Jed underscore that boosting the collective strength of individual workers in both arenas was a feature and not a bug of the New Deal framework as its authors understood it.

As Jed puts it:

The right way to see unions, on this view, is as akin to political sub-communities. A vote on unionization is more like a constitutional referendum than it is like the election of representatives, and once a union exists it is a forum of collective will-formation within its workplace, appropriately binding on all who are, so to speak, within that jurisdiction. This is so because organized labor presents an essential political-economic counterweight to wealth and capital, an essential institution of rough civic equality. The First Amendment should not be interpreted as protecting personal rights that undercut this democratic institution.

For his part, Brishen Rogers is leery of this brand of constitutional political economy. Any left/liberal effort to rebuild our labor laws, Brishen suggests, must take seriously the libertarian-style “personal rights” the Roberts Court honors and Jed is willing to demote. “[T]he relationship among the state, unions, and individual workers,” Brishen insists, “is devilishly complicated in a constitutional culture [like ours] that prizes individual liberty.” So, rather than the refurbished New Deal/social democratic brand, Brishen proposes a model he calls “libertarian corporatism.”   His scheme would encourage or even mandate collective bargaining at the occupational or sectoral level. (And in this regard, Brishen is roughly on the same page as Kate.)

But the “libertarian” aspect of Brishen’s scheme is where the constitutional disagreement comes in. Brishen would undo the current (New Deal) scheme of majority rule – where unions chosen by a majority of workers become exclusive bargaining agents for all workers at a given workplace or firm, in favor of a new arrangement that leaves workers nearly unfettered choice as to bargaining representatives, and thereby draws the sting out of Janus and any future SCOTUS attacks on what remains of compulsory cost-sharing under the present labor law regime. Brishen envisions a plurality of different solidarity organizations with their own bargaining agents, inluding a paradoxical anti-union union in the mix for those libertarian-minded souls.

But his argument is not merely strategic or instrumental. Brishen thinks that this more libertarian scheme of multiple unions at a given site is a better moral and political fit with the deeply pluralistic, multiple-identities tenor of the times. Working people do not identify as “workers” today in the way they did in the mid-20th century era of steady jobs at big factories. “Today…our identities are fluid over time…and based less on our status as workers than on…ethnicity, religion, sexuality…and the like.” So, today, as a matter of principle, it won’t do to bind everyone into one big class-based union. “Under libertarian corporatism, workers’ associations would enjoy power just insofar as they are freely chosen,” by workers one-by-one.

The refurbished New Deal perspective may envision the one big union as a democratic forum of collective will formation; and suggest that today (unlike the past) working people of color, women and other others occupy the labor movement’s front ranks and would readily form caucuses in the one big union, where multiple, intersecting identities could find free expression. Brishen is skeptical, as he should be. If broad, class-based, labor activism is going to revive, it will need to put ethno-racial justice out front – and that may lean in favor of the kind of fundamental institutional changes and autonomous ethno-racial-identity-based workers’ associations Brishen sketches.

The refurbished New Deal view may worry that a plurality of unions easily may translate into a diminution of collective clout and financial resources. Brishen has answers that run, inter alia, to the notion that a legal framework that bolstered sectoral bargaining – as opposed to the present decentralized, workplace- or firm-based bargaining regime – would boost collective clout, notwithstanding that the meta-bargaining agent at the sectoral level would be some kind of federation of plural unions.

The moment is ripe for exploring and debating the pros and cons of these rival reform ideas. The debates will involve a weave of moral/constitutional/institutional/political and economic argument.  Constitutional political economy is the name for that weave.

William Forbath is the Lloyd M. Bentsen Chair in Law and Associate Dean for Research at the University of Texas at Austin School of Law.