This post builds on previous posts by Willy Forbath and Jennifer Klein. My basic point is to simply to echo and amplify their arguments for restoring work – the rights and dignity of workers; wages, job security, working conditions and employment policies; self-organization and participation in workplace governance, social preconditions such as security and education for expanding access and opportunity to good jobs – to the center of the progressive political agenda and its legal and constitutional strategies.
It’s more than a little weird that work has been so displaced from the central concerns of politics, social policy and legal and constitutional rights and powers that anybody has actually to be making these arguments. Most people spend most of their waking hours at work. Much of their identity, status, and practical options in life is determined by their occupations and pay. Work also spills over into everything else: time at work takes away from and puts pressure on time doing other things, family, friends, play, civic association, political engagement. Security or insecurity at work affects willingness to take entrepreneurial risks or demonstrate civic courage. It even affects health: there is evidence that the strains of hierarchy and insecurity at work drastically shorten life expectancy. Also: for many people, perhaps most, the norms and operational practices of workplaces are a standing contradiction to basic liberal ideals of liberty, equality, human dignity, and the elementary mechanisms for making authority accountable -- democratic governance and the rule of law. Workplace order is usually hierarchical and sometime close to dictatorial, and often relies upon minutely detailed disciplinary codes, pervasive supervision, intrusive surveillance, abusive hectoring, and infantilizing and humiliating rules and commands – e.g. requiring workers to ask permission to go to the bathroom, specifying when they can go, timing their visits, and spying on them – all enforced by the threat of (arbitrary, in an at-will world) firing. What would seem in any other context to be unacceptable affronts to dignity, privacy, and autonomy are justified by unexamined and often implausible claims of efficiency and the thinnest veneer of contract – that workers must be taken to consent to everything they are subjected to so long as they don’t exit, even when exit is fraught with cost and potential ruin.
Given the importance of work, and the anomalous position of workplace order in a liberal polity and society, one would expect issues concerning work to be fairly prominent in political and legal controversy; and for most of our history one would be right. Workers and their rights and interests aren’t just key categories in the socialist tradition; they are so in mainstream American liberal traditions as well. One of the central liberal ideals was some version of “free labor”, which was opposed to feudal serfdom, slavery, peonage, aristocracy, privilege and monopoly. The core free-labor ideal was independence, freedom from domination by powerful others, assumed to be a precondition to both republican or “ancient” liberty to participate on equal terms in democratic governance, and to liberty as self-development and self-realization, liberty to make the most of one’s talents, expand one’s capacities, and express one’s personality.
Some parties thought some very minimal set of conditions would satisfy the ideal: suffrage for free white males, anti-monopoly policies producing mostly competitive markets, legally free exit from employment, opportunities to work one’s way up to self-sufficiency. Others pressed for more expansive conditions: an egalitarian distribution of initial property and skill endowments (e.g. through homesteads, estate taxes breaking up inherited concentrated wealth, universal public education etc.), which would both help to equalize opportunity and give free citizens a base of security and self-sufficiency to resist domination; and organizations of craft workers equipped to bargain on equal terms with factory managers, rights to organize, strike, picket, and boycott. The terms of the debate kept changing with new technologies, economic conditions and forms of work organization: e.g. as the family farm disappeared, social insurance against common hazards of life, workplace, injury, unemployment, disability, inadequate retirement savings, death or injury of a household provider replaced the property in land as the basic form of security endowment. After the Great Depression it was assumed that the governments had some responsibility to alleviate unemployment, at least through counter-cyclical fiscal if not aggressive full-employment-promoting policies; to establish minimum labor standards; and to regulate workplace organization and collective bargaining; though how much responsibility, and how it was to be exercised, was always of course controversial.
These disputes eventually entered, of course, into constitutional argument: was the regulation of slaughterhouses or of professions a denial of basic liberty rights to choose one’s occupation? were the regulation of wages and hours or statutory prohibitions on yellow-dog contracts a denial of employers’ and employees’ liberty of contract? did legislative protection of the right to strike, or legislative restriction on labor injunctions, or the Wagner Acts’s protections for labor organizing and mandates to bargain in good faith, protect workers’ liberties to engage in free bargaining or infringe the employer’s liberty to run his business as he saw fit and non-union workers’ rights to make their own contracts? Were southern planters’ attempts to keep farm labor tied to land through criminalizing contract breaking and crop-lien laws legitimate modes of contract enforcement or instruments of peonage?
I’d be interested in hearing from others why they think, given this very long history in which labor and its rights and interests were so dominant, that work, workers’ rights, unemployment, labor regulation, etc. have mostly disappeared from the top of the liberal-progressive political agenda – with the notable exception of employment discrimination, the post-1970s offshoot of civil rights law. Why, for example, are the only live legal issues and set of actionable claims having to do with bosses’ humiliating treatment of workers limited to sexual harassment? Why are wage stagnation and the erosion of employment-related benefits not burning issues in political campaigns? (I have a list of possible explanatory factors but would like to add to it.) The fading-out of the liberal work-related agenda is especially striking because it is clearly still central to conservative strategies: to undercut what little remains of the Wagner Act’s protections of labor organization; to keep down the minimum wage; to enable employers to reclassify jobs to exempt them from overtime pay; to gut labor protections in trade agreements; to cut back still further on occupational safety-and-health standard-setting and enforcement; to exempt illegal immigrants from basic labor protections; to use layers of subcontractors to escape accountability for foreign labor conditions; to weaken enforcement of antidiscrimination and family-leave laws; to reduce workplace benefits and shift the risks of disability and the burdens of insurance onto workers; to use “tort reform” to shift the burdens of occupational disease and toxic harms, and “tax reform” to shift the burdens of taxation onto wage workers while lobbying against policies to socialize such risks; etc. The aim seems to be to produce a kind of new feudalism, in which an oligarchy of managers, professionals and investors are serviced by a low-wage service class that has to bear all the risks, harms, and insecurities of capitalism; to fragment and privatize the social-insurance system by replacing universal programs with privatized ones financed with tax breaks or stingy, crummy means-tested public systems for everyone who can’t afford them. In this world low wages, insecurity of employment, high unemployment rates, immigrants without regular legal status, and a crummy social safety net are all good and useful because they tame wage demands, suppress worker militancy, and produce a cowering, fearful, servile workforce.
You get the picture, and it’s not a pretty one. The only point I’m pressing for here is to get this cluster of issues back on the liberal agenda. Social insurance in this view is vital to liberty, because it’s the equivalent of old-fashioned property; it’s what enables the worker to speak frankly and as an equal to the abusive boss. Workplace organization is vital to voice and participation in self-rule and the ability to protect against abuse and humiliation at the workplace, as Jennifer Klein says. These issues have had constitutional or quasi-constitutional locations in the past (the “free labor” campaigns against slavery and indentured servitude; the discussions of workplace conditions in the debates over, and later enforcement actions under, the 13th Amendment and peonage statutes; labor’s attempt to give constitutional status to the right to strike; the –futile, as it developed – attempt to take labor out of the definition of “property” protected under the 14th Amendment in the Clayton Act; the attempts to make Wagner Act protections into a super-statutory charter of workplace liberty, etc.). It does not seem so important at the moment to find an exact location in the legal/constitutional universe for rights of workers, rights at work, rights to forms of security that will underwrite liberty and equality at work, the practical means to be free of the domination of family and civic lifeworlds by the pressures and demands of work, etc. an exact location in the legal/constitutional universe as it does to restore them to their proper place in progressives’ central concerns.
The interests of working people ought to be a natural focus for political advocacy and organization, since they include pretty much everyone from the upper middle class on down and transcend the divisions of identity politics. In the last presidential election only John Edwards (ably advised on these themes by our conference colleague and my namesake Robert [M] Gordon) really campaigned around these issues. But they are fundamental – might I say “constitutional” in the sense of basic, structural -- issues of principle: what can liberty and equality rights possibly mean as a practical matter if they must be suspended for most of the day, and undermined by fear of falling into catastrophe if a job is lost?
-- Robert W. Gordon