by Sophia Z. Lee, Professor of Law & History, University of Pennsylvania Law School
“Right to work” is dominating the news, making headway in union strongholds and finding sympathy on the Supreme Court. Yet the concept of a legal “right to work” harkens back to the early Twentieth Century when this and other substantive due process doctrines were used to strike down Progressive labor laws. The New Deal Court supposedly laid to rest this “Lochner era” (thus named for an emblematic 1905 decision holding that a New York maximum-hours law violated workers’ and employers’ freedom of contract). So how have right-to-work proponents managed to rally successfully behind such an anachronistic term?
The Workplace Constitution from the New Deal to the New Right provides the first legal history of the right-to-work campaign. As it demonstrates – right-to-work strategists’ Lochner-era moniker notwithstanding – these savvy and forward-looking activists quickly replaced their substantive due process claims with ones based on the First Amendment. In the process, they forged a modern conservative civil rights campaign that grew up alongside its liberal counterparts.
The conservative activists who fought the union power unleashed by the New Deal had sturdy Lochner-era roots. Even before the New Deal, employers had moderated their open-shop activism, insisting that they were anti-closed shops, not anti-union. When activists first gathered under the right-to-work banner in the early 1940s, their argument that no one should have to join or support a union to keep a job was in keeping with that Lochner-era position. In 1944, Hollywood mogul Cecil B. DeMille brought the first right-to-work lawsuit over a one dollar assessment levied by his union. DeMille’s suit likewise relied on Lochner-era substantive due process claims and precedent.
But right-to-work activists quickly updated their legal claims to fit the emerging civil rights and civil liberties regime. Even DeMille’s suit reflected this change: On appeal, DeMille’s lawyers added First Amendment forced speech claims based on the 1943 Supreme Court decision West Virginia Board of Education v. Barnette, which found that public schools could not compel students to salute the flag.
In the 1950s, right-to-work advocates pursued a coordinated litigation campaign akin to the NAACP’s challenge to public school segregation. When their cases reached the Supreme Court in the 1950s and ‘60s, First Amendment forced speech and association claims, along with post-New Deal precedents, predominated. Over succeeding decades, right-to-work advocates eliminated substantive due process claims from even the margins of their lawsuits. The constitutionality of union security agreements comes before the Supreme Court today strictly as a First Amendment issue.