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After 225 Years, It's Time to Respect the Constitutional Rights of Workers | The Nation

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John Nichols

John Nichols

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After 225 Years, It's Time to Respect the Constitutional Rights of Workers

When the United States occupied Japan after World War II, General Douglas MacArthur and his aides worked with Japanese citizens to write a Constitution that would assure Hideki Tojo’s militarized autocracy was replaced with democracy. Fully aware that workers would need to have a voice in the new Japan, they included language that explicitly recognized that “the right of workers to organize and to bargain and act collectively is guaranteed.”

When the United States occupied Germany after World War II, General Dwight David Eisenhower and his aides worked with German citizens to write a Constitution that would assure that Adolf Hitler’s fascism was replaced with a democracy. Recognizing that workers would need to have a voice in the new Germany, they included a provision that explicitly declared:

The right to form associations to safeguard and improve working and economic conditions shall be guaranteed to every individual and to every occupation or profession. Agreements that restrict or seek to impair this right shall be null and void; measures directed to this end shall be unlawful.

When former first lady Eleanor Roosevelt chaired the International Commission on Human Rights, which drafted the Universal Declaration of Human Rights that would in 1948 be adopted by the United Nations as a global covenant, Roosevelt and the drafters included a guarantee that: “Everyone has the right to form and to join trade unions for the protection of his interests.”

Americans have for generations accepted the basic premise that labor rights are human rights. And when this country has counseled other countries, and the international community, on how to forge a civil and democratic society, we have long recognized that the right to organize a trade union and to have that trade union engage in collective bargaining as an equal partner with corporations and government agencies must be protected.

When Dane County Circuit Court Judge Juan Colas struck down substantial portions of the anti-labor legislation that Governor Scott Walker signed last year, legislation that was written and implemented with the express purpose of undermining trade union rights and constricting collective bargaining rights, the judge grounded his decision in a recognition of the fact that trade unionists in the United States have basic rights that must be respected.

That is a point that should not have to be made. But at a time when union rights are under assault by corporate Republicans (and even some corporate Democrats) who seek to tip the economic and political balance of the republic entirely in favor of their Wall Street paymasters, it needs to be restated—frequently. And not just in Wisconsin. The rights of working people to form unions and to be represented by them in the workplace and in the political life of the nation are under attack in Chicago, where teachers are still struggling to get a fair shake from Mayor Rahm Emanuel and his school board; in Milwaukee, where many immigrant workers are striking in the face of crude intimidation by Palermo Pizza; in California, where unions are fighting a ballot measure (Proposition 32) that seeks to prevent them from playing a meaningful role in local and state politics; and nationally, as Mitt Romney and Paul Ryan run the most militantly anti-labor campaign ever mounted by a Republican ticket.

As Colas notes in his decision, “there is no constitutional right to collective bargaining.” But, the judge adds, where collective bargaining has been permitted, there cannot be separate rules that undermine or restrict the basic rights and civil liberties of trade unionists.

Walker’s anti-labor statutes and provisions did discriminate against union members and unions for the sole purpose of undermining their ability to function in the workplace—and in the public life of towns, villages, cities, counties, school districts and the state. Indeed, Judge Colas determined that “the statutes do impose burdens on employees’ exercise of (basic rights) when they do so for the purpose of recognition of their association as an exclusive bargaining agent.”

“Sections of (Walker’s legislation) single out and encumber the rights of those employees who choose union membership and representation solely because of that association and therefore infringe upon the rights of free speech and association guaranteed by both the Wisconsin and United States Constitutions,” wrote Judge Colas in his twenty-seven-page decision.

“These are fundamental rights and the infringement having been shown, the burden shifts to the defendants [Walker and the state] to establish that the harm done to the constitutional right is outweighed by the evil it seeks to prevent,” the judge continued.

Because defendants contend there is no infringement of the rights of speech and association, they offer no evidence or argument of the substantial evil the government seeks to prevent by the infringement provisions. Without any evidence or argument that the infringement serves to prevent an evil in the operation of the bargaining system created by the statutes, the court must find the infringement to be excessive and to violate the constitutional rights of free speech and association.

Those essential passages of Judge Colas’s ruling restate basic premises of American jurisprudence. They are neither “liberal” nor “activist” in their character and scope. Indeed, the judge adopts a far narrower approach with regard to the rights of trade unionists than did General MacArthur, General Eisenhower or Eleanor Roosevelt.

What Judge Colas did, using moderate language and a mainstream interpretation of the law, was to reassert a premise of American jurisprudence: equal protection under the law. The judge reminded us that trade unionists are not second-class citizens.

For this, Judge Colas was attacked by Governor Walker as “a liberal activist judge (who] wants to go backward and take away the lawmaking responsibilities of the legislature and the governor.”

Walker’s response was as ignorant as it was arrogant.

But it does raise an interesting question: Would Walker be as insulting to Eleanor Roosevelt? Or to Douglas MacArthur (who sought the Republican nomination for the presidency)? Or to Dwight Eisenhower (who served two terms as a Republican president)? Or does Scott Walker reserve his vitriol only for jurists who uphold the rule of law—and who remind us that the Constitution applies to all Americans, even workers?

Unfortunately, US courts rarely rule in favor of US workers. Check out this week’s Nation coverage of “The 1 Percent Court.”

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