REPORT | An Anti-Oligarchy Framework for Constitutional Labor Advocacy

In collaboration with the Leadership Center for Attorney General Studies, the Program on Law and Political Economy at Harvard Law School is pleased to circulate a new report, An Anti-Oligarchy Framework for Constitutional Labor Advocacy.

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Summary

This report is designed as a strategic resource to advance a robust constitutional regime for labor rights, focusing on the role state attorneys general can play to protect workers’ rights to engage in concerted activity and collective bargaining. Its proposed interventions emerge in the context of the Supreme Court’s systematic rollback of constitutional labor protections alongside the Court’s attack against the National Labor Relations Act and federal administrative labor enforcement. The Court’s anti-labor jurisprudence marks the forefront of a long-term legal strategy to constitutionalize an oligarchic political and economic order, accelerating in recent years toward a full-blown democratic crisis engulfing not only the labor movement but the entire American polity. A vigorous defense of collective worker organizing is thus paramount to the struggle for American democracy. The extraordinary challenges looming over the nation’s democratic institutions at the present juncture in turn compel pro-labor legal advocates to reassess their strategic outlook.

To that end, the report draws on Law and Political Economy scholarship to illustrate what Joseph Fishkin and William Forbath have termed the “anti-oligarchy” framework for constitutional labor advocacy. Following longstanding progressive traditions in American constitutional politics, the framework advises anchoring an advocacy agenda for labor democracy in a broad conception of workers’ fundamental rights. Rather than adapting to and confining legal argument within the Court’s increasingly hostile posture toward American workers, the anti-oligarchy approach expands the constitutional terrain to the political branches, worker organizations, and the broader public. By mobilizing on the basis of shared constitutional commitments, these institutions can reinvigorate the role they have historically played to enshrine fundamental labor rights in the American legal system. This represents a strategic effort to democratize constitutional interpretation, debate, and advocacy contrary to the judiciary’s often-presumed dominion over how the Constitution ought to shape our economy and society.

State governmental institutions play a central role in anti-oligarchy constitutional strategies. Particularly at a moment when all three branches of the federal government are actively suppressing the Constitution’s democratic and egalitarian features, state governments and state-level advocacy stand as the essential bulwark for working peoples’ rights. Today, as advocates adapt to grave new political circumstances, they increasingly recognize state constitutions, state legislatures, and state attorneys general as potent, if generally underutilized, levers for democratic struggle. Incorporating these resources into an effective long-term strategy in turn requires a shift away from advocacy approaches that narrowly privilege the federal judiciary towards the embrace of a capacious and public-facing labor constitutionalism. The principal objective of this report is to make the case for that latter approach, offering a prospective blueprint for advocacy strategies that aim to secure workers’ fundamental rights as the foundation for constitutional democracy.

Download the full document here.

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