Antonin Scalia is dead. And the American labor movement has been able to catch its breath for the first time in years. Before his death, they were committed to a valiant, rear-guard defense, but a doomed one. There was no hope for victory—the labor movement has long given up any hope for that, with American unionism at its lowest level in a a century, with the Democratic Party less committed to union principles than ever, with the unions pre-emptively abandoning pro-labor political candidates to curry favor with free traders who might throw them scraps from the table but nothing more. But Friedrichs v. California Teachers Association threatened to be a mortal blow, with January’s oral arguments making clear that none of the Supreme Court’s reactionary majority felt constrained by precedent, or by what some of them had said in the past. Friedrichswas a lawsuit brought by a teacher objecting to the collection of mandatory “agency fees” from non-members to fund collective bargaining. These agency fees are the lynch pin of the “agency shop”, the only lawful way for a union to bill non-members for the services and benefits inherent in collective bargaining.¹ Friedrichs was meant to kill the agency shop, in public-sector unionism at least.

But then Antonin Scalia died. With the Democrats the favorites to hold the White House in November, and perhaps even to take back the Senate, it seems inevitable that Scalia will be replaced by a liberal. Friedrichs itself defaulted to a four-four tie at the court, protecting the agency shop for now. One almost feels bad for Sam Alito—he’d worked meticulously in the Roberts Court style, through Knox v. SEIU and Harris v. Quinn, to slowly build precedent so that his crown jewel would look less like the judicial coup it would have been. Now, he can only sit back and hope that Donald Trump arrives in November.

For America’s teachers, this is a victory, without a doubt. They can rest easy now, no longer worried about their unions being hamstrung, their job security destroyed, and their students suffering as a result. Celebrate with them. Buy the teachers in your life a victory drink.

For the labor movement, however, this is a stay of execution and not much more. When they gear up for the next battle, the unions will remain outmaneuvered, disarmed, and with too few members. In the week before public unions were spared the outlawing of the agency shop, West Virginia officially became the 26th state to ban the agency shop in private-sector unionism by passing a so-called “right to work” bill. The patient may not be dead, but the prognosis is still poor. How did we get here? And what can be done?

I. The So-Called Right to Work

The term “right to work” is bullshit. It gives the impression of something good, or at least an interest that must be respected. After all, for people who want employment, for leftists seeking full employment policies as a moral aim and as necessary to defeat capitalism, what could be better than a right to work? It suggests an entitlement of each individual to a good day’s work and a good day’s pay. Who could possibly be opposed?

Yet this is not what the phrase means. When the right to work is discussed in modern America, what is being discussed is the right to take a job at a union shop—that is, a workplace that has been unionized and thus where workers have better job security, higher pay, and more vacation and sick days than they would otherwise, as well as access to union-provided grievance procedures and representation generally—without themselves having to join the union and help pay for the union negotiators who bargain for all these things. It is the right, in essence, to free-ride, to reap the benefits of collective bargaining without paying the cost, to instead spread that cost to your co-workers. It is the creation of a collective action problem: if each employee is individually better off not paying for the union (since they can continue to reap its benefits), eventually the union, starved for resources, will no longer be able to provide the collective benefits at all. Even Friedrichs herself, the plaintiff, likes all the things the union provided for her. She acknowledged in interviews that she agreed with the union on almost all issues. She just didn’t want to pay for it.

Why would unions agree to provide all these benefits to non-members? Why not simply negotiate for contracts that cover the dues-paying union members and leave the free-riders to bargain individually as best they can? Simple: American labor law says they have to. If a union wants to be legally recognized as such, it must bargain for all the employees in the bargaining unit, not just their members. In most other countries a union could cut free-riders loose, but in the US they’re not allowed to: a union cannot offer any advantage to union members over other employees. Indeed, if a non-union employee covered by a union contract suspects the union is fighting even slightly less diligently for them than for union members at, for example, a grievance procedure, they can take the union to court and receive damages.

Hence the free-rider problem: unions are required to represent even employees who don’t pay the dues that make that representation possible. How can unions avoid this situation? The unions’ solution has historically been to negotiate so-called security agreements with employers, contracts that allow them to require certain membership or dues arrangements with employees, thus securing the union’s financial status and workplace support. The gold standard was the closed shop—an agreement from the employer that only union members can be hired and workers must remain union members in good standing to stay employed. People who weren’t willing to join the union wouldn’t need to be represented because they wouldn’t be employees. Closed-shop agreements also gave the unions both a voice in the hiring process (they could refuse to admit new members) and the ability to fire employees (they could kick them out of the union). The closed shop is illegal now in the US, for reasons both noble (many white unions used the closed shop to segregate workplaces, and banning closed unions might stop that) and bad ones (capital despised closed-shop agreements for placing so much power in the hands of labor), but at the height of American unionization, the closed shop was the most powerful tool in the labor movement’s arsenal and a key demand in every bargaining agreement.

One step down from the closed shop in terms of union power, there is the “union shop,” where employees can be required to join the union after being hired, and unions are required to accept as members anyone who is hired. This takes hiring and firing decisions out of the hands of the union, but otherwise leaves the union in a strong position: every employee represented by the union is a dues-paying member of the union, so the free-rider problem does not arise.

Unfortunately, union shops are also illegal in the US. While this was thought to be legal in the sense that Congress never contemplated banning them and never intended to and wrote no legislation that would facially suggest that union shops were illegal, union shops are just as illegal as closed shops, so said our Supreme Court, over thirty years ago. The case was Communication Workers of America v. Beck, where Beck sought a refund of the portion of his union dues used to support Hubert Humphrey as President (as well as other candidates). The court held that mandatory membership—including dues uses to support political activities—were unconstitutional.

All that is left to unions are the so-called agency shop. In the agency-shop model, workers cannot be forced to join the union or remain members in good standing, but they can be required to pay a limited fee to the union for bargaining-related expenses. These fees, however, cannot be used for the union’s political expenses (campaigns, advertisements, etc.), thus supposedly balancing employees’ freedom of speech with the union’s (and thus their coworkers’) need to avoid free-riders.

It is also unlawful to discriminate in any way based on union membership status in hiring decisions. Thus not only unions are unions unable to bargain for employers to hire only union members; an employer cannot put in place a preference for workers willing to join the union on its own accord.

In other words, under the agency-shop model, a non-union worker 1) cannot be discriminated against in the hiring decision, 2) cannot be forced to join the union upon being hired, 3) is entitled to all the benefits accorded to a union worker and 4) can be required to pay a less-than-full-dues fee so that the union is compensated for the representation and negotiation they will do for this freeloader.

So-called “right to work” laws ban the agency shop. In right-to-work states, employees have the “right” to get something without paying for it: they cannot be required to pay agency fees to unions, even though unions are required to represent them. That’s all they do. They don’t provide anyone with a right to a job; they provide workers with the right to freeload in a way that destroys unions. This is bullshit. And Cecil B. DeMille crapped it out.

II. Origins of Bullshit

Cecil B. DeMille is today best remembered as a director of blockbuster films such as The Ten Commandments. A larger-than-life persona and perhaps the first celebrity film director, DeMille is less well remembered as a New Deal-era reactionary, one of the most prominent non-politician Republicans of the 1930s and 1940s. He regularly considered political runs in California and was an eager informant on suspected Hollywood radicals for the fledgling FBI. And like any good ally of capital, he utterly despised unions and unionization. Unfortunately for DeMille, he did enjoy hosting a radio show, and his radio station was subject to a union contract and a closed shop agreement, forcing DeMille to become a union member.

DeMille is a strange father for the right-to-work movement. While there was political opposition to the closed shop before DeMille—from capitalist interests who felt them to be unnatural reversals of the proper order of things and from civil rights activists who were not really anti-closed so much as they were anti-unions-being-racist-while-maintaining-the-closed-shop—DeMille was the genesis of the opposition to union security agreements as a workers’ rights issue. Yet DeMille’s primary occupation was as a director and producer, as an employer and a boss. He was wealthy, and his direct involvement with unionization was only for his hobby as a radio host.

Under the labor law of the time, back when the closed shop was legal at the federal level, individual states could choose to outlaw it. A California ballot initiative sought to do just that, and the unions there quickly mobilized against it, including DeMille’s. DeMille received a notice from his union, requiring that each member pay $1 to supplement the political effort to protect the closed shop, in addition to regular dues. DeMille, who supported the ballot measure and despised the closed shop, sued rather than pay his dollar.

DeMille argued that the $1 fee violated the 5th Amendment Due Process Clause, the 13th Amendment bar on slavery, the 14th Amendment Due Process Clause, and the 15th Amendment bar on denying the right to vote on the basis of race and argued that $1 fee forced him to choose between his right to work and his right to vote. If these arguments seem weak, it’s because they are non-sense. He was laughed out of court. After all, what business of the government were the rules his union set for its members? If he objected so strongly, couldn’t DeMille pay his dues, including the supplemental dollar, and then spend his own time and money campaigning for the ballot measure anyway? Who would possibly confuse the union’s position with DeMille’s, especially if he was publicly making a stink about his opposition?

DeMille and his lawyers knew this, of course. They had no intention of winning the lawsuit—their legal theory was radical and entirely unsupported by established understanding of any aspect of the Constitution. DeMille had larger aims. He cast himself publicly as a martyr, insisting that he had never heard of the closed shop and had had no opinion about it until the union had demanded his dollar (a lie, as his private writing clearly revealed). He insisted that he was simply taking a principled stand on a matter of conscience, and that for taking this stand he was now prevented from hosting his radio show for no good reason. That he knew it was just a dollar and he was a rich man who could easily pay it, but, you know, principle was at stake. His right as a man to work. His constitutional rights.

Perhaps DeMille is a sympathetic figure here; after all, unlike the modern exponents of right-to-work, DeMille was subject to the closed shop. He was not limited to paying an agency fee for bargaining expenses, but could be required to pay money for political activities. He did in fact lose his job over it.

The 1947 passage of the Taft-Hartley Act, banning the closed shop and authorizing the states to go further in allowing them to choose to ban the union and agency shops as well, not allowed under the prior version of the Wagner Act. This was a victory for DeMille personally. He appeared as the star witness at Congressional hearings, presenting his fight as one in defense of the Declaration of Independence and the Constitution, protecting a fundamental right to work without being forced to express political views. But the banning of closed shops was insufficient for DeMille—he immediately moved on to campaigning for the banning of the union and agency shop as well, first through his personal foundation and later through the fledgling National Right to Work Committee (which still hosts a ten-minute video he produced post-Taft-Hartley, Shodown!, on its website). DeMille was careful to avoid attacking unions directly, though he did attack union bosses and the specter of union corruption (newspaper headlines mentioning Hoffa feature prominently in his video). In his hands, the right to work was not about unions and worker power, it was about individual liberty. DeMille set himself up as the romantic figure of the early right-to-work movement, the tragic hero betrayed by his union, the rugged individual (assuming the individual is a wealthy celebrity) fighting for freedom.

III. Constitutionalism as Strategy

Whether coincidentally, or not, DeMille’s strategy mirrored that of another legal movement born out of union conflict. Some twenty years before DeMille used his dollar as a pretext to declare war on American unionism, a collective of American radicals, including IWW members Roger Baldwin and Helen Keller (yes, that Helen Keller) and future socialist presidential candidate Norman Thomas had founded the ACLU. Baldwin, the initial executive director and driving force of the ACLU, was open, in private at least, about his long-term strategy: the goal was a socialist worker’s state in America. Before he became disenchanted with Stalinism, it was the Soviet Union itself that was his aim. ²

The ACLU was born in response to the World War I crackdown on the American left, during which radicals were arrested (and, if non-citizen, deported) for speaking against the war and the draft, or even merely speaking in defense of the courage of those who did.³

But Baldwin had ambitions far beyond defense against political repression; he sought to form the ACLU as a Trojan horse, of sorts, for radical politics. His theory was that if the ACLU could litigate protections for radical speech, the radicals would be able to move the masses to their side as the government stood by, prevented by their own rules from fighting back.

Baldwin’s plan was for ACLU lawyers and activists to wrap themselves in the Constitution, insisting that they had discovered the theretofore hidden meaning of the First Amendment. Never mind that the theory of the First Amendment they espoused had never before been even hinted at by the courts or by any other mainstream Constitutional theory, and had existed solely on the fringes of legal academia. Never mind that many ACLU activists were in fact radicals who wanted ultimately to overthrow the Constitutional order rather than defend it. They would present themselves as the only true defenders of the Constitution.

DeMille and Baldwin could scarcely have been farther apart in their ultimate aims, but they shared something: both saw in our rather vague founding document a recipe for cloaking social change in legal reasoning. DeMille was eager to break unions as part of his reactionary agenda, while Baldwin’s initial aim for the ACLU was to provide a fertile ground of leftist dissent in which unions could grow. But both saw in the Constitution and the defense of individual rights a way to advance their longer-term, less popular goals. Invent and push the Constitutional argument, Baldwin was certain, and radicals freed from fear of prosecution would be able to woo the masses. DeMille was equally certain that through his Constitutional cloak he could establish the right to work and break union security agreements, guaranteeing freedom for capital against organized labor.

Looking back from 2016, we can see that both DeMille and Baldwin were successful in their legal aims. Even if the closed shop were not illegal, DeMille’s lawsuit against his dues would no longer be laughed out of court; meanwhile, Baldwin’s campaign largely succeeded in winning an absolute First Amendment right to political dissent. But their broader strategic goals have met very different fates. DeMille’s aim to destroy union power in the US has been largely accomplished, while Baldwin’s hope for a socialist movement in America has not gotten off the ground. The American left was never able to make use of its newly won civil liberties to take power; indeed, most of the ACLU’s most significant victories came in defending the rights of reactionaries (the Klan and the Jehovah’s Witnesses, both reactionary groups, though of very different stripes, were key plaintiffs in free speech’s great victories during the Baldwin era), not radicals.

Which brings us back to the recently departed Antonin Scalia. Scalia, like Baldwin and DeMille, saw in the Constitution a weapon to promote his social and class interests through legal argument. His originalism and textualism made the same claims to true defender status⁴ as Baldwin and DeMille, and from his perch on the Supreme Court, he was able to bend society to reflect his vision even better than DeMille.

The problem is not that Baldwin was misguided in his legal aims—of course speech alone should not be subject to prosecution--but that as DeMille and Scalia both understood, the courts cannot be a source of radical social change. This is not to say that good things cannot come out of the courts—obviously in cases like Brown v. Board of Education, Roe v. Wade, and Obergefell v. Hodges have made countless lives better. But constitutional litigation is a limited realm, one far better suited to the aims of DeMille and Scalia than men like Baldwin. At its best, a Court is limited to protecting negative liberty, where the class interests of workers, minorities, the poor and other disadvantaged groups require advances in positive liberty. A court cannot enact new social programs, rework bad labor law, or build a mass movement. Consider: while Brown v. Board of Education ended segregation by law, it did nothing to end ongoing de facto segregation; while Roe v. Wade legalized abortion, it did not provide poor women with abortion coverage; while the Warren Court enacted a procedural revolution in criminal defendant rights, mass incarceration continues to grow. Meanwhile, the Courts have carved away the New Deal consensus, prevented any serious attempt to regulate money in politics, and added more and more protections for employers and more and more barriers for unions. The Courts are no substitute for mass social movements and electoral politics, at least for the left.

IV. Advancing the Labor Movement

Antonin Scalia is dead. And with him, the Friedrichs legal challenge dies as well. The agency shop will remain constitutional for public sector unions. The temptation of the labor movement will be to retreat, to defend its ground, to work to elect electable, centrist Democrats who promise to appoint justices and judges who will keep Friedrichs dead, and the agency shop alive. These are fine, as short-term safety nets, but they are strategies built to fail in the long haul. As Scalia reminds us, the Supreme Court can change inconveniently and unpredictably, and sooner or later a five-vote majority willing to complete Sam Alito’s aborted trilogy of anti-agency shop litigation is likely to return.

More to the point, so long as the labor movement restricts itself to the terms of the Wagner Act from the New Deal era, as modified by Taft-Hartley, courts can only ever carve away, and never add. The courts are capital’s terrain; now is the time for a counter-offensive. Some ideas:

First. Abandon single representation. American labor law is unique in that it requires unions to bargain for the entire workforce, preventing minority unionization and mandating that unions expend resources bargaining for and representing non-members. Unions should instead fight to democratize the workplace, allowing minority unions to bargain for their members, and unions to bargain for benefits exclusive to members. Want the ten-percent salary bump the union has negotiated? Join the union and pay three percent in dues.

Second. Fight for the closed shop. The closed shop was bad, not because it was an affront to the political rights of dissidents like DeMille (it was not), but because too many unions used them to protect racism and segregation. Yet the third major power in defeating closed shops were Southern Democrats who were scared that closed shops would bring black and white workers together by requiring them to share a union. The Southern Democrats were right to be afraid. If workers have the bargaining power to seize the power to hire (and fire!) from employers, they should be able to take it. The way to prevent union racism is through civil rights legislation, not by outlawing powerful tactics for class struggle.

Third. Administer benefits for unemployed workers. In the social democratic powerhouses in Scandinavia, unionization rates are extremely high despite the fact that there are no security agreements in the American sense. How is this? Primarily, it’s because the unions operate unemployment systems for their members. Scandanavian workers retain union membership because their unions take care of them even when they are not employed.

Fourth. Advance striker protections. Strikes have become less successful in America in part because—and this may come as a shock—the courts have continually built protections for employers and strikebreakers rather than striking workers. The labor movement should push back against these—push to legalize tactics like sympathy strikes, whole-site picket lines,⁵

recognition strikes, and other outlawed striking tactics In addition, be innovative—what’s wrong with criminalizing managers and owners who authorize the hiring of strikebreakers and scabs? There’s may be something to be said against it, but let’s put it on the table regardless.

The temptation for the labor movement will be to take Scalia’s death as a reprieve, to circle the wagons. That is precisely wrong. Scalia will live again; he always does. If the labor movement wants to prevent the next Scalia from crippling them, now is the time to attack. There is nowhere left to run.

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¹ Notably, agency fees cannot be spent on political activities.

² “Communism, of course, is the goal,” said Roger Nash Baldwin in 1920. In 1927, he published Liberty under the Soviets, a short book arguing that the Soviet Union was the prime example of worker liberty in the world. Baldwin eventually became disillusioned with the Soviets, and communism, and in the 1940s led a purge of communists from the ACLU, an odd turn for a group committed to civil liberties.

³ Eugene V. Debs, the leader of the Socialist Party, was arrested and convicted after giving a speech carefully designed to avoid any criticisms of the war or the draft proper, limiting it to praising only the moral courage of those who had directly criticized the war knowing that the Wilson administration would prosecute them.

⁴ The clearest point in revealing Scalia’s constitutional theory as an Emperor without clothes comes perhaps in National Federation of Independent Businesses (NFIB) v. Sebelius, the first Obamacare case. Though coming from Chief Justice Roberts, the part of the opinion rejecting the commerce clause as a source of constitutional power for the individual mandate effectively reveals originalism dishonesty. Roberts is nominally speaking only for himself, but his rationale can be understood to represent Scalia and the other dissenters, dismisses the commerce clause by looking to a dictionary from the 18th century, reviewing the first three entries and determining that none of them support the idea that the individual mandate is a regulation of interstate commerce. In her dissent, Ruth Bader Ginsburg blithely goes to the same dictionary, goes down one entry, and discovers a definition that perfectly supports the individual mandate as interstate commerce. Originalism is lawyers playing at history and linguistics, with neither training nor skill, and then claiming their results are scientific.

⁵ This is particularly important at construction sites, where striking workers are frequently unable to form a picket line because they can only picket the particular subcontractor that employs them, rather than the site as a whole.

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