This essay begins with a puzzle: scholars have built a robust set of constitutional claims about labor rights, claims with deep roots in the labor movement’s own past struggles and its own traditions of constitutional claim-making. Yet, workers’ movements today have made no use of these claims, Andrias reports. The reason, she suggests, has to do with the deep mutual hostility between workers’ movements and the courts. If past were prologue, workers could at least use such arguments outside the courts, but, she argues, “in our [contemporary] legal culture, constitutional arguments are primarily judicial arguments,” and have a way of ending up in court, where workers tend to lose as they have most of the time for more than a century. Thus, it makes sense for workers to avoid constitution talk. At the same time, Andrias argues, to lay the groundwork for any future constitution of workers’ rights – rights “to a union and to collective bargaining, to decent wages and benefits, to basic dignity and a measure of democracy at work” – we would need fundamental political changes that only organizing can bring about. She argues that campaigns such as the Fight for $15 and the Domestic Workers Alliance, working outside the confines of labor law as it is traditionally understood, may be laying the political groundwork for a future “anti-oligarchy Constitution.”
Constitutional Law | Courts | Labor and Employment Law | Law and Economics | Law and Politics
Building Labor's Constitution,
Texas L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2858