Summary: Americans believe they have a number of workplace protections under the law, which are common in other democracies: free speech and privacy rights, defense against arbitrary dismissal, etc. They are wrong. And in her fascinating new book The Workplace Constitution from the New Deal to the New Right (Cambridge University Press, 2014), the legal historian Sophia Z. Lee wants to understand why. She explores two major campaigns, stretching roughly from the 1930's to the 1980's, which sought to establish constitutional workplace protections, recounts their important successes, and ponders their ultimate failures. It is a story of unlikely bedfellows: black, pro-union labor activists like C.W. Rice and Charles Houston fighting–if not quite alongside then at least parallel to–anti-union, right-to-work leaders like Hollywood mogul Cecil B. DeMille and railroad worker William T. Harrison. Both urged the federal judiciary and Supreme Court to grant individual rights under the Constitution, for very different reasons, and for very different ends. Contrary to what many scholars think, Lee finds that major civil rights groups like the NAACP were actively pursuing employment safeguards in the postwar era, using the "exclusive representation" granted by the New Deal to unions to make very creative arguments for "state action." At the same time, conservatives sought to roll back the explosion of unionization that followed the New Deal by arguing that "closed shop" rules, now covering nearly a third of the non-agricultural labor, unconstitutionally forced workers to join unions and pay for such things as lobbying. Initially, the courts rejected these latter claims, upholding New Deal reforms at a time when business still reeled from its reputation during the Great Depression. But in the late 1950's, as Congress uncovered corruption in select unions, conservatives in both parties aligned "right to work" with anti-discrimination cases, putting the growing and pro-labor civil rights movement in a bind. The Supreme Court, for its part, was caught between not wanting to uphold segregation in or free speech violations by labor or to impose constitutional rights on the entire private sector. Free marketeers were also torn over the implications of a workplace Constitution, as were unions; again, for different reasons. The result is a tale of absorbing complexity–thankfully, lucidly and beautifully written.
