I am honored that Lance Compa and Sheldon Friedman took the time to formulate such thoughtful and generous responses to my essay. I admire their work, appreciate the breadth of experience they bring to bear, and share many of their concerns and hopes. But, in this limited space, I must focus instead on our points of disagreement, and on only the main ones at that.
Let me turn first to Lance Compa’s insightful critique. Of course, Compa is right when he says that law matters, and I agree with his reading of the present flaws in our labor law. But he is overly optimistic when he contends that human rights arguments provide a “unifying force” that can help overcome those flaws. In fact, recent trends in union organization don’t bear out his optimism: organizing successes have been all too rare since labor took up the human rights formulation. Indeed, even Compa himself notes that the human rights approach has been no panacea for labor. He cautions that labor’s new appeals may not show results soon and admits that the concept of human rights is “still an abstraction for most workers.” His is scarcely a ringing endorsement of the rights-based argument. Thus, it seems to me that the re-framing of the argument that I call for above is not unwarranted.
The divergence between Compa’s views and mine may be attributable to our differing readings of U.S. labor history, which become clear in Compa’s discussion of the Wagner Act. Compa’s treatment of the NLRA is ontradictory. On the one hand, he argues that the act was erected on an economic foundation, “not a fundamental rights foundation,” because “human rights were not developed enough in the 1930s to serve as a foundation for labor law.” On the other hand, he suggests that “Congress could have based the law on fundamental rights under the First Amendment’s promise of free speech and association” as well as on the Thirteenth and Fourteenth Amendments. Was a rights-based political culture developed enough to be useful in the 1930s or not? He seems of two minds on this. Yet it is not this contradiction that troubles me so much as Compa’s understanding of the NLRA itself.
There were two reasons why the NLRA’s framers did not pursue the rights-based approach that Compa wishes they had taken. First, the history of constitutional law prior to 1935 made the commerce clause the most credible basis for sustaining a national labor relations law in the view of Senator Robert Wagner, who was interested in an act that could withstand Supreme Court scrutiny (as the NLRA ultimately did by a narrow 5–4 margin). But second, and more important for the purposes of this discussion, Wagner did not adopt Compa’s approach because the senator sought to promote collective bargaining and foster strong unions that could carry it out. Wagner and his staff understood that collective bargaining and freedom of association are not exactly the same things. Indeed, their a...
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