Wednesday, February 10, 2016
In this editorial, Commonweal asks whether the "Supreme Court will fatally weaken labor" in the Friedrichs case. In my view, the Court's Abood case was wrong the day it was decided and it should be overruled.
Let me start with agreement. The Editors open with this:
Labor unions can be corrupt, obstructionist, and maddeningly bureaucratic. They are also important mediating institutions—John Paul II called them “indispensable”—that serve as a counterweight and check on government as well as corporate power. In that role, unions are essential to the health of democracy, and crucial to promoting participation in the political process.
I agree. (I might insert a caveat, though: It is not clear that public-sector unions consistently or effectively serve as a "counterweight and check on government . . . power." They sometimes support and contribute to government power . . . when that power is being exercised in ways that align with those unions' interests.)
As the editors note, the power and membership of private-sector unions has declined in recent decades, while "[p]ublic-employee unions have remained relatively strong, thanks to the acceptance by government and unions alike of collective bargaining and binding arbitration." As I see it, though, some governments have "accepted" these -- and they have done so when doing so was in the political interests of the parties in power in those governments -- while others have not. One of the criticisms of public-sector unionism, as it is practiced today, is that it too often does not involve negotiation or checking, but instead mutual-benefit arrangements between some politicians, on the one hand, and public-sector unions, on the other.
The editors acknowledge that public-sector unions contribute consistently and generously to the Democratic Party. They write, next, that "[t]he Friedrichs case has been steered through the lower courts by a right-wing libertarian group that is not coy about its hope that in overturning Abood the Court will deal a devastating blow not just to the union movement, but to the Democratic Party." I don't see why this group should be "coy" about wanting to undermine the power of the Democratic Party, especially if -- in that group's views -- the power of the Democratic Party is being unfairly (and, they think, unconstitutionally) augmented through funds obtained not through contributions but through exactions on objecting public employees.
In any event, though, the First Amendment question should be asked and answered without regard to the ideological leanings either of the group challenging the agency-shop deal or the party that benefits from that deal. And, I think that question has a clear answer. The editors suggest, in one sentence, that the First Amendment theory the challengers are relying on is tainted by association with Citizens United (another case that is widely misunderstood and that was correctly decided) and with the "money is speech" theory. But, as many have pointed out, the Court did not say that "money is speech"; it said that "forbidding spending money on speech burdens the right to speak," which it clearly does. Here, the claim is that requiring someone to spend money on speech burdens the right not to speak. (That the freedom of speech includes the right not to speak is well established. See, for example, the classic flag-salute case.) I am sure the editors would agree that it would be unconstitutional for a government to require public employees to contribute, as a condition of employment, to the production, printing, and mailing of political literature for the Republican Party. So, it seems to me, the editors' objection is not really to the claim that mandatory dues implicates the First Amendment, but to the conclusion that the challengers' First Amendment rights outweigh the benefits that agency-shop arrangements provide to public-sector unions. As they conclude:
Free speech has not, and should not, trump every other right or social good. The right of association and the dignity that follows from having an effective voice in the workplace are equally important.
The Constitution does protect the freedoms of association and assembly and I agree that the associational rights of unions "weigh" just as much as the speech rights of employees. However, this case does not implicate the right of public-sector workers to associate; it does implicate the current ability of public-sector unions to require workers to engage in expressive association. Whatever public or moral interest there might be in maintaining that ability is outweighed -- given our First Amendment -- by the objecting employees' rights.
I've written many, many times here at Mirror of Justice that criticisms of some aspects of public-sector unionism, and defenses of public-employees' constitutional right to opt-out of agency-shop arrangements, are not inconsistent -- at all -- with the emphasis in the Church's social teachings on the dignity of work and the important mediating functions of labor unions. Those teachings do not prevent us either from (i) noting the implications and demands of our First Amendment or (ii) pointing out the many ways in which American public-sector unions undermine the common good (e.g., their opposition to school choice and their strong support for abortion rights).
I completed my law and tradition cycle of posts today at Liberty Law with this one, Gratitude for Legal Traditions. Here is the 
rest of the cycle in one place:
And here’s a little bit from the beginning of the most recent post:
The prospects for law and tradition are difficult to discern. This is in no small measure because the most frequent predictions about tradition’s future have little time for any traditions other than those of science and technology. And these generally are not presented as traditions but instead as repudiations of tradition—as simply rational responses to changing circumstances in the service of progress and present need. The prophets of the traditionless society never go quite so far as to strike out the traditions of science from their predictions.
Recently, my friends John McGinnis and Mark Movsesian engaged in an interesting exchange on the subject of tradition and contemporary politics and society. John argued that technology creates a culture and a politics relentlessly oriented to the future and deracinated from the past. Mark responded that traditions and traditional institutions survive, even today, because they speak to basic human nature and “most of us need the stability the past provides, the guidance of received wisdom.”
Each man makes his points. It is certainly true that substantive traditions—particularly substantive religious traditions—have been severely shaken by various contemporary tremors. They have been attacked directly and they have been weakened from within. And yet they have not been destroyed. Perhaps they cannot be destroyed so long as human beings are born to human beings. So long as parental care is necessary for the raising of children. So long as people seek to find meaning in an infinitely mysterious universe. So long as they depend upon rules, categories, and institutions which they cannot create ab ovo and for that occasion alone whenever changing circumstances demand it. So long as the autonomous acts of autonomous actors cannot achieve all of the ends that render life worth living. Just so long will people seek and find traditions, cling to them, and be grateful to them. Though they may become dissatisfied with them, human beings need traditions to live.
"Palace of Henry VIII Holds First Catholic Service in Nearly 500 Years," the New York Times reports. Progress . . . Next up, the return of the monasteries . . .
