<< Following R. Hale and M. Cohen isn't private property itself a grant of
privilege by the state? So, if the right of speech is independent of the
issue of ownership of property, then, again, where does the right of
property grant a right to curtail speech if the government has no power to
delegate the right to a curtailment of speech? I'm thinking here of Hale's
notion of "private government" and the emergence of the doctrine of
countervailing power.
This is too deep for lawyers. In property law they teach, and it is a soer of common law doictrine, that all property rights come from the sovereign. That is why they revert ("escheat") to the state if there is no one to take undera
will or the law of intestate succession. So, in logic, your questions are good. The S.Ct ran up against this back in 40 when it decided that a racially restrictive covenant was unenforceable under the equal protection clause because if it were to be enforced, that would implicates the courts and so be state action. (Shelley v. Kramer) This even though the covenant is a private contracta mong private parties. Well, you can see where that leads, and the history of the state action doctrine (requiring action by the state to implicate constitutional rights) is an incoherent flight from those implications. The life of the law has been experience, not logic.
*********
> Well, the parchment isn't supposed to do much in the law of labor relations.
===
> It seems obvious to this naif that the above is a violation of the equal
protection clause. Why should govt. serfs have more rights on the job than
corp. serfs?
Because state regulation of economic and social relations gets "rational basis" review unless it touches on race, maybe on sex, or implicates a very short and now fixerd list of fundamental rights. Rational basis review means that if the court can think of a reason that is not insane, the law is upheld. In modern times, the only major case I can think of where a classification flunked rational basis review was the Colorado anti-gay law in Roemer v. Evans. This dceference on economics and social legislation is part of the deconstitutionalization of the law that was the New Deal revolution. Back before '37, the Court zapoped hundreds of laws regulating wages and hours, etc., under the due process clause.
> Also, by what you state, the CC serves as the constitutional
"basement" for the NLRA just as the CC [& 14thA-implied] serves as the
"basement" of title VII, so why can't 1A serve as the "basement" for speech
rights on the job,
Because we are talking about private, nonstate action. see above. I don't pretend this makes deep sense. It's just the law.
> just as the freedom of assembly clause indirectly serves
as the basis for collective bargaining?
Na. The basis of collective nargaining is that the federal government has a policy of letting workers and bosses fight it out with minimal federal involvement. Not minimal enough, in my view.
> I know it's ideology that's the
reason it's fucked up for "private" employees in the US, but still the
sophomoric itch scratches for the why behind the ideology.
Because if you let Shelly v. Kramer run amok, on the left, you get socialism, and on the right, you get constitutionalization of lots of things that we none of us want the feds involved in.
--jks