[lbo-talk] how we could win

Charles Brown cbrown at michiganlegal.org
Thu Jul 20 13:38:10 PDT 2006


CB: How about a Constitutional Amendment for a right to a job ( for 'Mericans) ?

[WS:] looks good on paper, but easier said than done.

^^^^ CB: Well, yes, but don't we have to ratchet down the practicality/scientific standard a bit in order to project a positive/utopian vision ?

^^^^^^

First, as you will probably agree, all Constitutional amendments provide only "negative" freedoms i.e. freedom from government action of one sort or another (albeit some would argue that all freedoms are necessarily positive because they require enforcement i.e. they are de facto entitlements to be protected from the proscribed action).

^^^^ CB: I understand your point, but ,no, Constitutional Amendments are not limited to establishing negative freedoms. There's nothing in the Amendment Clause of the Constitution so limiting them. The famous rights in the Bill of Rights are all negative freedoms, but they're just the first Ten Amendments.

To be clear, it is constitutional to pass affirmative or enabling freedoms as Amendments to the U.S. Constitution. Also, it is Constitutional to limit private property , not just government action by Constitutional Amendment. For example, the 13th Amendment abolishing slavery is a limitation on _private_ not only state action. It is _unconstitutional_ , not violation of a statute, for a private person to own a slave.

In fact the 28th Amendment for a right to a job that I drafted has a clause amending the 5th Amendment prohibition on taking private property without just compensation, by saying that when the 28th Amendment on a right to a job and the 5th Amendment on no taking private property without just compensation are in conflict, the 28th Amendment shall prevail. I thought of this in practice when we wanted to save jobs in GM plantclosings, and I realized we would have to deal with the 5th Amendment clause on taking private property, because to require a job right would have to infringe on the employers' private property right.

^^^^^^^

The problem with the right to a job amendment is that it would not just proscribe certain activities, but it would also mandate certain activities (i.e. hiring) by some individuals. The main problem with that is who would exactly be required to perform such activities (in case of proscriptions it is not a problem as they apply to everyone). That is to say, if I were unemployed, would you have an obligation to hire me? And if not you, then who?

^^^^^ CB: In the Amendment I drafted , the government must act as employer of last resort. Also, I abolish the employment-at-will doctrine in my draft. All employment discharge must be for just cause.

It's like socialist countries. Everybody must have a job.

^^^^^^^

Another issue is that such right-to-work legislation could be used to undermine collective bargaining - as it historically has been the case in the right to work states as well as in planned economies of Eastern Europe. The rationale behind it was that once the right to work is legally guaranteed, workers' self organization has no longer any raison d'etre.

^^^ CB: Actually, the Amendment on a right to a job or income would be part of the reintroduction of Roosevelt's Economic Bill of Rights, and we would have Amendments for a right to a union, a right to health care, a right to housing, etc. So, the right to a union would be bolstered. We would abolish Taft-Hartley, which would mean outlawing "right" to work FOR LESS laws which are authorized by Taft-Hartley. We could explicitly outlaw "right" to work FOR LESS laws in the Constitution , too.

^^^^^^

My take on this issue is that a better approach is to use fiscal policy *directly* to create full employment. In other words, instead of purchasing goods from private producers to boost demand and thus reduce unemployment, the government would directly hire any officially unemployed person who is otherwise unable to obtain a job on his/her own within a specified time period. That is to say, if I a register as unemployed and receive unemployment benefits for the specified time period (say, 6 month, as under the current system), at the end of that period one of the three things must necessarily happen: (i) I am gainfully employed through my own search and effort; if this fails (ii) the government must offer me a job (and training, if necessary) that I can realistically be expected to be qualified for and that pays a living wage, or if there are no jobs that I can realistically be expected to be qualified for (iii) I am certified as disabled and receive a pension.

^^^^ CB: Yes, the Right to a Job Amendment would require this too, as it contains a clause that Congress is directed to pass laws enforcing and implementing this amendment. Along the lines you are talking we still have the language of the Hayes-Conyers Income and Job Action Acts of the 1980's, which requires a range of measures to be taking by Congress and the President to establish full employment. What you say above would be included in Congressional acts implementing the 28th Amendment for a Right to a Job or Income.



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