Zietlow on the Constitutional Right to Organize

Rebecca E. Zietlow, University of Toledo College of Law, has posted The Constitutional Right to Organize, which is forthcoming in Labor and Vulnerability (Ashgate Press), ed. Martha Fineman and Jonathan Fineman:

This paper explores the role of a worker’s right to organize into a union in constitutional law and constitutional politics. This right has been contested since workers began to claim it in the mid Nineteenth Century, but the right to organize is currently under direct attack. In 2011, the state legislatures in Wisconsin and Ohio, two states with a historically strong union tradition, both enacted measures which effectively eliminated the right to organize of most state employees. Legislatures in the historically pro-labor states of Michigan and Indiana have enacted “right to work” measures, aimed at undermining the power of private sector unions. Unions and their supporters have fought back against these measures, with limited success. What is notable is what opponents of these measures in all states have not argued – that the statutes deprive workers of the fundamental right to organize under the United States Constitution. While the right to organize is protected by statutes, including the federal National Labor Relations Act (NLRA), there is also good reason to believe that it has constitutional dimensions, based in the First and Thirteenth Amendments. This paper examines three facets of the right to organize – the right to join a union, bargain collectively, and to strike. Courts have recognized a First Amendment based the right to join a union, but they have been resistant to claims of a right to bargain collectively and to strike under the Thirteenth Amendment. However, courts do not act in a vacuum; rights often develop in constitutional politics before they are adapted by courts. This paper joins the growing body of work on popular constitutionalism, constitutional law outside the courts, which plays a crucial role in defining and developing constitutional rights. The debate over the constitutional right to organize is a particularly rich example of politics influencing rights consciousness and constitutional law. As recent developments reflect, the debate pitting the right to organize against the right to work has played out primarily not in courts, but within our constitutional culture. Underlying this debate is a struggle over the meaning of worker’s freedom. Opponents of the right to organize invoke individual autonomy, while its supporters claim that the right is necessary for true worker autonomy. The question of whether there is a constitutional right to organize hinges on the ongoing battle, in courts, and in the political realm, over collective rights in constitutional law.