The Right to Work and the Right to Strike
20 Pages Posted: 30 Aug 2017
Date Written: August 29, 2017
The Supreme Court’s decision in Friedrichs v. California Teachers Association, in which an evenly divided Supreme Court declined to invalidate a California public sector agency shop arrangement on First Amendment grounds, stalled, but did not suspend, an antilabor campaign on behalf of a constitutionally protected “right to work.” Commentators have regarded this First Amendment litigation strategy as a departure from the traditional principles undergirding the First Amendment. By contrast, this essay demonstrates that arguments of the kind proposed in Friedrichs date back to the late 1930s, when the modern First Amendment took shape. Moreover, although they did not yet prevail in court, such arguments may have helped to garner broad-based support for the Supreme Court’s speech-friendly turn in the post-New Deal period. Yet right-to-work claims were only one component of the contemplated First Amendment bundle, which also included a robust right to strike. Over the ensuing decades, the Supreme Court backed away from strong First Amendment protection for labor activity, a retreat that applied to pro- and antiunion activity in equal measure. The current constitutional attack on public sector agency fees threatens to unwind a doctrinal progression that insulated industry from secondary boycotts, wildcat strikes, and mass picketing even as it restricted the associational autonomy of individual workers. Advocates of a First Amendment right to work should consider the consequences of unraveling that constitutional compromise.
Suggested Citation: Suggested Citation