111,653 research outputs found
The Right to Strike under the United States Constitution: Theory, Practice, and Possible Implications for Canada
No full textAnswering critics of the Canadian Supreme Court's judgment in B.C. Health, the author argues that the Court laid the foundation for a principled and durable doctrine protecting constitutional labour rights, one that goes directly to the heart of the matter — the inequality of workers’ power in the employment relation. In the author’s view, two paths could lead from B.C. Health to the recognition of Charter protec- tion for a right to strike: one that treats the right as an accessory to col- lective bargaining, and one that upholds the right directly on the basis of the Charter values of equality and participation. The author supports the latter approach, contending that constitutional rights should be defined in relation to fundamental values, in a way that is not contingent on time-bound or fact-sensitive assessments about the role of strikes within a particular collective bargaining regime. Although a Charter right to strike may involve the courts in difficult choices about when to defer to legislative policy decisions, and courts may lack the institutional capac- ity to deal effectively with labour law issues, the author points out that judges can look to ILO standards for expert guidance. Noting that the U.S. experience in this area might be of considerable use to Canadians, the author concludes by providing an overview of American case law concerning a constitutional right to strike.Peer reviewe
How American Workers Lost the Right to Strike, and Other Tales
No full textAs a veteran labor scholar once said, if you want to know where the corpses are buried in labor law, look for the of course statements in court opinions. This essay traces the historical origins of five such of course statements, each of which has had a devastating impact on the American labor movement. The five statements are: (1) Workers have no right of self-defense against employers that commit unfair labor practices (NLRB v. Fansteel Metallurgical Corporation); (2) Employers enjoy the right permanently to replace economic strikers (NLRB v. Mackay Radio & Telegraph Company); (3) The National Labor Relations Board has no power to deter unfair labor practices (Consolidated Edison Company v. NLRB); (4) Employers may exclude union organizers from their property (Lechmere, Inc. v. NLRB); (5) Employers may close operations out of spite against workers who choose to unionize (Textile Workers Union v. Darlington Manufacturing Company). The essay argues that in each of the five cases, the Court revived Lochner-era constitutional doctrines - supposedly defunct since the switch in time that saved nine in 1937 - and applied them to cut back on statutory labor rights. Although the five statements were not considered especially dangerous at the time, their impact has since been magnified by social and economic change. Taken together, they may account for a substantial proportion of the decline in the American labor movement. As in the pre-New Deal period, then, judges have deprived workers of the rights to organize and strike based on constitutional concerns. This time, however, they have avoided the forthright constitutional reasoning of the pre-1937 period, thereby insulating their rulings against changes in constitutional jurisprudence.Peer reviewe
Section 1 of the Thirteenth Amendment and the Badges and Incidents of Slavery
No full textThis Article presents the first comprehensive treatment of the basic and officially “open” question whether Section 1 of the Thirteenth Amendment directly bans the badges and incidents of slavery. Surprisingly, in light of present-day uncertainty, the historical record is relatively clear on this issue. Members of the Thirty-Ninth Congress generally agreed that Section 1 banned at least some of the badges and incidents; they parted company over which ones. The Democrats and their allies, nearly all of whom had opposed the Amendment, claimed that it outlawed only the core incidents of slavery, for example chattelization and physically or legally forced labor. But their Republican opponents, all of whom had supported the Amendment, maintained that it banned a far broader set including—at a minimum—denials of the rights enumerated in the Civil Rights Act of 1866, namely to enjoy the same rights to make contracts, own property, and participate in court as were enjoyed by white citizens. Until 1968, courts also assumed that the issue of badges and incidents hinged on Section 1. Contrary to the received wisdom, Jones v. Alfred H. Mayer Co., decided in that year, announced for the first time that the identification of badges and incidents might be a task for Congress under the Section 2 power to enact “appropriate” enforcement legislation. Although the Court has maintained for nearly half a century that the question is “open,” the practical reality is that courts honor the narrow reading of Section 1 proposed by the unsuccessful Democratic opponents of both the Amendment and the 1866 Civil Rights Act, a reading later introduced to jurisprudence in the now-overruled Jim Crow decisions of Plessy v. Ferguson and Hodges v. United States. It is not too late to resolve the official uncertainty by embracing the Republican reading. This choice would re-start the process, commenced by the Thirty-Ninth Congress but derailed in Plessy and Hodges, of determining what it means to ensure that neither slavery nor involuntary servitude “shall exist.” The Article concludes by exploring some of the basic interpretive issues and their implications for the constitutional law of racially disparate impact, race-based affirmative action, gender equality, and reproductive freedom.Peer reviewe
The Thirteenth Amendment versus the Commerce Clause: Labor and the Shaping of the Post-New Deal Constitutional Order
No full textDuring the twentieth century, Congress's power to regulate commerce grew sensationally while its human rights powers atrophied. This strange phenomenon originated in the choice, made by lawyers and politicians in the early 1930s, to base labor rights statutes like the Wagner Act on the Commerce Clause instead of the Thirteenth Amendment. Unions and workers argued that the rights to organize and strike made the difference between freedom and involuntary servitude. But a bevy of progressive lawyers who styled themselves friends of labor undermined labor's Thirteenth Amendment theory. The article argues that this clash reflected not merely tactical differences among allies, but fundamentally conflicting constitutional goals. It contends that the Supreme Court upheld the Wagner Act not because of the lawyers' Commerce Clause arguments, but because workers staged a series of sit-down strikes that confronted the swing justices with a choice between industrial peace or war. Afterward, unions and workers interpreted the Wagner Act decisions as victories for labor freedom, but the Act's Commerce Clause foundation pointed in a different direction - one leading to fateful distortions in the jurisprudence of congressional powers.Peer reviewe
Contract, Race, and Freedom of Labor in the Constitutional Law of “Involuntary Servitude”
No full textThe Supreme Court has yet to adopt and apply a standard for assessing labor rights claims under the Involuntary Servitude Clause of the Thirteenth Amendment. This Article suggests that one may be found in the leading decision of Pollock v. Williams (1944), which contains the Court’s most thorough discussion of the interpretive issues. Under Pollock, a claimed right should be protected if it is necessary to provide workers with the “power below” and employers the “incentive above” to prevent “a harsh overlordship or unwholesome conditions of work.” Although this is not the only conceivable standard, it does fit well with the text, history, and case law of the Amendment. The absence of any racial element, which might appear dishonest in light of the fact that most of the leading cases involved workers of color, nevertheless corresponds to the Amendment’s original meaning and appears to have important advantages from a doctrinal point of view. The Article discusses the legal and philosophical justifications of various labor rights in relation to the Pollock standard, including the right to quit, the right to change employers, the right to name the wages for which one is willing to work, and the right to strike.Peer reviewe
Snubbed Landmark: Why United States v. Cruikshank (1876) Belongs at the Heart of the American Constitutional Canon
No full textUnited States v. Cruikshank (1876) is an unacknowledged landmark of American constitutional jurisprudence. Cruikshank, not the far more famous Civil Rights Cases, limited the Fourteenth Amendment to protect only against state action; Cruikshank, not the notorious Slaughter-House Cases, narrowed the Privileges or Immunities Clause of the Fourteenth Amendment to exclude rights enumerated in the Bill of Rights; Cruikshank, not the canonical Washington v. Davis, announced that the Fourteenth Amendment’s Equal Protection Clause protected only against provably intentional race discrimination; and Cruikshank, not the Civil Rights Cases or City of Boerne v. Flores, first excepted the Fourteenth Amendment from the general principle that Congress enjoys discretion to select the means of implementing its constitutional powers. Historically, if the argument of this Article holds true, Cruikshank played a crucial role in terminating Reconstruction and launching the one-party, segregationist regime of “Jim Crow” that prevailed in the South until the 1960s. The circuit court opinion of Justice Joseph Bradley unleashed the second and decisive phase of Reconstruction-era terrorism, while the ruling of the full Court ensured its successful culmination in the “redemption” of the black-majority states.
Despite its enormous jurisprudential and historical importance, however, Cruikshank has been omitted from the mainstream narrative and pedagogical canon of constitutional law. The results have been obfuscation and distortion. Unlike the Civil Rights Cases, Slaughter-House, Davis, and City of Boerne — from which students learn the principles actually announced in Cruikshank — Cruikshank lays bare the true origin of those principles in affirmative judicial intervention immunizing overtly racist terrorism against effective law enforcement. By contrast, Plessy v. Ferguson, the legal profession’s chosen focus for confession and atonement, merely let stand the legal product of a white supremacist state government that owed its existence to Cruikshank. With Cruikshank safely off stage, American law students are treated to a happy tale of progress from Plessy to Brown starring the Supreme Court as the primary protector of civil rights — a role that, ironically, the Court carved out for itself by truncating Congress’s civil rights powers in Cruikshank. Add Cruikshank, and the entire narrative shifts in ways that upset time-honored notions in the dimensions of federalism, separation of powers, popular constitutionalism, and class.Peer reviewe
Why Is There No Socialism in the United States? Law and the Racial Divide in the American Working Class, 1676-1964
No full textThe gap between rich and poor in the United States yawns wider than in any other first-wave industrialized country. Why? One influential explanation points to the historic failure of American workers to build a class-wide movement for economic redistribution and social welfare protections. During the late nineteenth and early twentieth centuries, when the working classes of Europe were building durable and resilient socialist movements, the American working class was hopelessly split along racial lines. Many analysts today blame white workers for this divide. So racist are white workers, it is said, that they have repeatedly chosen to forego the economic benefits of cross-racial working-class solidarity in order to enjoy the psychological satisfaction of lording it over people of color. This article, written for a symposium on the Constitution and economic inequality, suggests that white workers did not make their choices on neutral terrain. Elites used law to disrupt and discourage cross-racial cooperation. Law played an especially decisive role in two periods: one following Bacon’s Rebellion of 1676, when law constituted white laborers as a control stratum over both enslaved and free blacks, and one during and after Reconstruction, when the Supreme Court immunized white supremacist paramilitary insurgents against federal law enforcement
A Free Labor Approach to Human Trafficking
No full textIn theory, an unwanted thing or condition can be eradicated by the negative means of attacking it directly or the positive means of nurturing a nemesis, or a combination of the two. In the field of pest control, for example, a given pest can be attacked directly with pesticides, or a nemesis species can be introduced into the environment. In the latter case, the nemesis species does the work of extermination either by attacking the pest or by outcompeting it for food and other resources. Direct attack is the predominant legal approach to human trafficking (which is defined to include not only cross-border trafficking, but also the harboring or maintenance of a person in a condition of slavery or involuntary servitude). The United Nations Protocol, for example, calls on member states to criminalize “trafficking in persons” and to provide protection and assistance to victims of that practice. There is, however, another possibility: nurturing the free labor system as a nemesis to trafficking. This approach operates by guaranteeing to workers a set of rights sufficient to achieve either economic independence or, failing that, the power below to give employers the incentive above to provide jobs that rise above servitude. It relies primarily on workers – not government enforcement – to achieve and sustain labor freedom. This free labor approach, which finds support in the law of “involuntary servitude” under the Thirteenth Amendment to the United States Constitution, appears to provide an indispensable and cost-effective way to eliminate instances of trafficking that elude criminal prosecution. The article discusses the possible application of this approach to slavery and involuntary servitude, cross-border trafficking, and sex trafficking.Peer reviewe
The Thirteenth Amendment at the Intersection of Class and Gender: Robertson v. Baldwin’s Exclusion of Infants, Lunatics, Women, and Seamen
No full textSlavery was but one of many hierarchical relations, including parent-child, husband-wife, master-apprentice, and master-servant, that arose within the legally constructed household. The Thirteenth Amendment’s prohibition on slavery and involuntary servitude, which contained no explicit domestic exception, inevitably raised the question whether domestic relations other than chattel slavery would be affected. The Supreme Court’s ruling in Robertson v. Baldwin (1897) carved out a domestic exception to the Amendment for children, wards, adult seamen and – in practice – women in intimate relationships. This article, written for a symposium on the Thirteenth Amendment and class, examines the origins, justifications, scholarship, and case law of Robertson’s domestic exception, including its application to seamen, abused children and battered women.Peer reviewe
Labor's Constitution of Freedom
No full textAccording to the standard story, the basic structure of modern constitutional law emerged from a clash between two great constitutional visions: the laissez-faire constitutionalism of the so-called Lochner Era and the progressive vision concisely summarized in footnote four of United States v. Carolene Products. The standard story omits a third great constitutional vision: labor's constitution of freedom. In the early twentieth century, American workers advanced their own interpretations of the Constitution, often in opposition to those of the Supreme Court. Workers did not wait for judicial approval to put their constitutional vision into practice. Having declared laws unconstitutional, they endeavored to strike them down through noncompliance and direct action.
The article begins by setting forth a theoretical model of constitutional insurgency, focusing on the roles played by popular rights consciousness, direct popular power, and professional legal representation in achieving constitutional change. It then presents a detailed case study of constitutional insurgency. In January of 1920, the Kansas state legislature enacted the Kansas Industrial Court Act, the most ambitious piece of American labor legislation prior to the Wagner Act. Although the Industrial Court ruled in favor of workers more often than not, the American Federation of Labor declared the law unconstitutional under the Thirteenth Amendment, and ten thousand Kansas coal miners staged a four-month winter strike “against the political powers of the state of Kansas, monopoly, [and] the industrial court law.” The article tells the story and examines the dynamics of this insurgency from the level of the miners’ local unions on up to the United States Supreme Court.Peer reviewe
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