FUN WITH COLLECTIVE BARGAINING

Kay Steiger, guest-blogging (with Alyssa) at Matt Yglesias’ site, considers sexism in “trade professions” and after pointing out that jobs like hair dressing aren’t counted as such precisely because women do them, suggests that

What would help is first what these truck mechanics Harding points to are already doing, mentoring young women in non-traditional fields. Secondly, unions that represent those industries need to not only be free of sexism themselves, but aggressively pursue lawsuits that would discourage sexual harassment. This is happening with some larger trade unions already, but it’s not as wide as it should be.

I think this really sells short the potential for trade unions to take on discrimination. Any kind of organization with the resources can file a lawsuit – or individuals or groups can do it with no organization at all. In some cases, like the Dukes suit against Wal-Mart (largest class action suit ever in this country), that can contribute greatly to leveraging pressure on a company. But workers with a union can change the behavior of their employer in a slew of other ways. That includes negotiating with them.

Union workers can and do win binding contracts obligating companies to take on unequal opportunity by creating training programs, by collaborating with community leaders and/ or non-profits, by submitting to oversight by workers, clergy, politicians, or whoever else to judge progress, to change work rules or job descriptions that create needless barriers for people who could otherwise do the job – and in any number of other ways. And these workers can enforce these commitments, as well as the company’s legal obligation not to discriminate, through collective action and through a grievance process that moves faster, cheaper, and more accessibly than a lawsuit. The limits are defined by power on the shop floor and nationally or internationally in the industry.

As Thomas Geoghegan wrote last year in his book See You in Court,

a big change has been the way we have moved from contract to tort. For most working Americans, the kind of people I represent, this accounts for the biggest change in the way the law now impacts their lives. In the 1950s and 1960s, up to 35 percent of workers, especially men, were covered by collective bargaining agreements…In the last thirty years, there has been a loss of contract rights – to a job, a pension, or even health care – unlike that in any other developed country. It is really a new legal regime that many Americans experience as infuriating, without being able to express that fury in an appropriate way.

Now the missed opportunities within substantial chunks of the labor movement to link arms as part of movements for sexual and racial inequality in the twentieth century is not unrelated to the steep decline in union power and union membership. But those workers Kay is talking about, who have unions, have an arsenal at their disposal to attack discrimination in the workplace – not only through contract language of course, but also through the kinds of action, client pressure, media strategies, and such that play part in winning recognition and winning contracts – without depending on the prospects of a lawsuit.

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STOP STEPPING ON MY BREAKTHROUGH

Doing his best to sweet-talk electorally-ascendent liberals into hitching their wagon to the libertarian rickshaw, Brink Lindsey offers a list of shared victories in which liberals and libertarians can revel together:

an honest survey of the past half-century shows a much better match between libertarian means and progressive ends. Most obviously, many of the great libertarian breakthroughs of the era–the fall of Jim Crow, the end of censorship, the legalization of abortion, the liberalization of divorce laws, the increased protection of the rights of the accused, the reopening of immigration–were championed by the political left.

If these are victories for libertarians, then this is a better argument for why libertarians should support liberals and leftists – the people who actually won each of these victories – than for why the left should turn libertarian. But it’s worth asking whether these markers of social progress even qualify as “libertarian breakthroughs” or “libertarian ends.”

The Jim Crow regime was undone in part by the elimination of the poll tax, a nasty law which restricts access to a government function to those able to pay for it and rewards those with more money to spend on their politics with more voice in them. What about undoing those laws qualifies as libertarian? The Jim Crow regime was undone in part by anti-discrimination laws that empower government to use regulation to limit the freedom of employers to employ a workforce that looks like themselves. Inflicting government intervention on market transactions is not exactly the libertarian m.o. Neither is government-mandated busing to integrate a public school system that if libertarians had their way wouldn’t exist in the first place.

Many libertarians no doubt break with Barry Goldwater and support the Civil Rights legislation of 1964 and 1965. But their support for good progressive law doesn’t demonstrate a fundamental affinity between liberalism and libertarianism. It simply demonstrates that even its devotees sometimes reject the maxim that “the government is best which governs least” when faced with the liberty-denying consequences of the “free market” whose “relentless dynamism” Lindsey urges liberals to recognize.

Libertarians may support freedom of the press from censorship, but they’re more likely to fret over how to sell off our publically-owned airwaves than how to ensure airtime for grassroots candidates. They may support a woman’s right to choose, but I wouldn’t count on their assistance in ensuring that women have the economic means to choose abortion or childbirth, or the educational resources to make informed choices. They may support the rights of the accused to a trial, but they’re not the first to line up to be taxed to pay for decent lawyers to represent them (then there are the ones who would like to replace the criminal justice system with a system of private torts). They may support allowing more immigrants into this country, but if you expect them to face down employers who exploit the fear of deportation to suppress the right to organize, you’ve got another think coming.

And though the Cato Institute won’t be joining Rick Santorum’s crusade against no-fault divorce any time soon, there’s no need for an earnest Ayn Rand devotee to support a right to divorce at all. After all, isn’t marriage a binding contract that the parties should know better than to get into lightly? Aside from the reality that it presides over marriage in the first place, why should government have any more right to stop consenting adults from entering contracts for lifelong marriage than it does to bar contracts for human organ sales or pennies-an-hour employment?

OUT GROUP

A couple paragraphs into Patrick Healy’s New York Times analysis on the New York Supreme Court’s decision rejecting equal marriage rights for gay couples is this peculiar turn of phrase:

Yesterday’s court ruling against gay marriage was more than a legal rebuke, then — it came as a shocking insult to gay support groups.

Gay support groups? It’s old news that the Times is loathe to describe the camps in language like “pro-gay” or “anti-gay” for fear of bringing down another round of rebuke from those in the latter camp, many of whom were last seen promoting the idea that the paper is willfully trying to help Al-Qaeda assassinate Donald Rumsfeld. But it’s really disappointing to see the paper slip into language in describing political groups engaged in collective action to transform policies hostile to gay people which makes it sound like we’re talking about individuals struggling with how to make it through a plight or pathology.

THE LOCHNER LITMUS TEST

Finally made it into the Philadelphia Airport late last night, after several hours delayed in George Herbert Walker Bush Airport in Texas, a real monument to small government if ever there was one. It was long enough to read a good chunk of Ed Klein’s anti-Clinton screed, and yes, it’s as bad as they say, and certainly libelous – though I’m not convinced that should be illegal. And it was a chance to watch the same couple minute CNN piece on O’Connor’s resignation several times.

Not being a Democratic Senator, I have the freedom to go off message and say that O’Connor’s resignation is unfortunate not because she was the linchpin in some sort of divine cosmic balance on the court that’s best for the country, but simply because her replacement will almost certainly be even more conservative than her, and conservative jurisprudence is bad for our country. Of course, if she herself didn’t want that to happen, she shouldn’t have presided over the theft of the 2000 election.

As for who comes next, my sense is that the Alberto Gonzales trial balloon is a red herring. It wins Bush credit from some moderates and Latinos for having an ostensibly moderate Latino on the “short list,” and when he goes with a Janice Rogers Brown instead, he’ll win that much more credit from right-wing extremists for having “listened” to their concerns about Gonzales.

The good news is that there are still five votes on the Court for upholding Roe (Casey was 5-4, but since then Justice Ginsberg replaced Justice White, who was one of the four), though not Steinberg v. Carnhart, which the federal late-term abortion ban seems to have navigated around anyway. That said, support for the right to autonomy in intimate spaces and decisions long recognized by the court is absolutely a standard for just jurisprudence.

At least as important as support for Roe in the coming controversy, though, should be opposition to Lochner, the court’s atrocious 1905 decision overturning New York’s minimum wage statute on the grounds that the absolute right of contract including a “right to work” for poverty wages. Lochner was overturned in West Coast Hotel, which rightly upheld the power of the people, through the legislature, to foster justice in the face of collective action problems and asymetrical bargaining relationships by enforcing universal labor standards.

Since Justice Black’s dissent in Griswold, opponents of privacy rights have made the perversely labelled the cases protecting them as “Lochner”-like, ignoring the differences between legislation regulating the relationship between employers, employees, and consumers, one which is by definition public, and legislation which regulates the private choices of individuals. Much as Footnote IV in Carolene Products suggests that judicial review is more justified when exercised to protect the rights of “discrete and insular minorities” who face more obstacles in protecting themselves in the legislative process, legislation itself is that much more justified when it achieves collective ends a majority of individuals might prefer but be unable to enact individually due to collective action problems. The law wrongfully overturned in Lochner achieved majority support despite employer opposition because most workers preferred to work less than 60 hours a week but could not unilaterally refuse to work more without threatening their livelihood. It is far less credible to argue that the legislation barring contraceptive use rightfully overturned in Griswold solved a collective action problem shared by a majority of couples who did not want to use contraception themselves but were somehow unable to decide for themselves not to use them. This illustrates the distinction between private and public interaction, and why privacy rights, which protect the former from the kind of regulation appropriate for the latter, preserve personal freedom, while the absolute “right to work” suggested in Lochner diminishes it.

While Justice Black makes equivalence between Lochner’s invocation of substantive due process and that in Justice White’s concurrence, the relationship between the fourteenth amendment and absolute laissez-faire contract rights is far more tenuous than the relationship between the Bill of Rights and privacy. The laissez-faire hostility to so-called “class legislation” was also explicitly rejected as constitutional law by the people through the sixteenth amendment, which in imposing an income tax recognizes the right and responsibility of government to pursue economic justice and equal opportunity through law. The American people, whose prosperity has been fostered and protected by many of those laws, deserve a new Supreme Court Justice who recognizes that right and that responsibility as well.

Wal-Mart Watch: A disappointing op-ed today from Robert Reich, who should know better. Somewhere in there, he’s trying to make the accurate point that government regulation has a role to play in overcoming the collective action problem under which consumers who prefer high-roading companies nonetheless patronize low-roading ones for the cheaper prices (this is a point he makes better in his book I’ll Be Short). Indeed, there is a structural problem which could be ameliorated by changing the perverse incentives behind the corporate race to the bottom. Thing is, it’s not only national legal change which could better reward companies which invest in their workers. It’s also coordinated organizing and media campaigns by labor and community folks organizing workers and consumers to reward better companies and punish worse ones. Taking the fight to Wal-Mart in particular is the defining challenge facing labor in the next decade. Because Wal-Mart is indeed bigger and badder than anyone else. So to write a piece called “Don’t Blame Wal-Mart” suggesting that all employers squeeze their workers equally is simply false and counterproductive. Reich gets a pedestal from which to play broker state technocrat, rising above parochial concerns, calling no one out in particular, pleading with both sides to be more fair-minded. Meanwhile, millions of Wal-Mart workers continue to face prejudicial treatment based on gender or immigration status, poverty wages, anti-union intimidation, and Triangle Shirtwaist Factory-style work rules. Sure, blame Bush, blame Nike, blame ourselves. But let’s blame ourselves in part for not blaming Wal-Mart nearly enough or as often as it deserves.

The Times makes a poor attempt to contrast Kennedy’s and Obama’s speeches last night:

If Mr. Obama reached for the middle with his promise of a new kind of politics under Mr. Kerry, Mr. Kennedy spoke to the most fervent and frustrated Democratic voters, weary after four years out of power.

This unfortunate sentence echoes some of the false synechdoches I find most frustrating in the way we discuss politics in this country: Eliding a positive vision with moderation and a negative critique with extremism, partisanship with ideology, open-mindedness with moderation, and the disengaged or disenfranchised with the moderates. Kennedy’s speech touted the historic accomplishments of the Democratic party and condemned the crimes of the Bush Administration. Obama’s drew on his narrative and those of his neighbors to craft a vision of the urgency and potential of democratic politics. There’s no cause to identify the former as a more radical project than the latter, and strong ground on which to argue the reverse.

It shouldn’t be a surprise, given the tremendous success of Obama’s speech and the lack of Black leaders with popularity and credibility articulating the right’s view of the path to Black uplift, that some conservatives would try to claim the speech as their own. Witness Roger Clegg’s flat attempt over at the National Review‘s Corner:

Barack Obama gave a fine speech, but it was not a speech that reflects the current Democratic Party. It celebrated America as “a magical place”; it did not bemoan our racism and imperialism. It professed that this black man “owe[d] a debt to those who came before” him; it did not call for reparations. It spoke of an “awesome God”; it did not banish Him from public discourse. It admitted that black parents, and black culture, need to change the way black children are raised; it did not blame or even mention racism. It quoted “E pluribus unum” and translated it correctly as “Out of many, one”; it did not misquote it, as Al Gore infamously did, as “Many out of one.” Most of all, the speech celebrated one America, “one people,” and rejected the notion of a black America, a white America, a Latino America, and an Asian America–a notion completely foreign to the multiculturalism that now dominates the Democratic Party.

Give me a break. It’s always been the work of the left to recognize and reclaim what is great about the reality of this country, what is greater about its ideals, and what broken promises maintain the gap between the reality and the ideal. Hence the appropriateness of Langston Hughes’ “Let America Be America Again” as a centerpiece of the Kerry campaign: The poem calls out and decries the myriad ways in which America falls short of the American ideal, makes appeal to an inherited vision of America, and yet recognizes that the dream of a just America past is itself a construct, that America never was fully America, but rather might just someday be through a struggle which begins with recognizing what is broken. As Obama says:

I’m not talking about blind optimism here – the almost willful ignorance that thinks unemployment will go away if we just don’t think about it, or the health care crisis will solve itself if we just ignore it. That’s not what I’m talking about. I’m talking about something more substantial. It’s the hope of slaves sitting around a fire singing freedom songs. The hope of immigrants setting out for distant shores.

It’s only by falling back on the tired and baseless image of Democrats as visceral America-haters that Clegg can pretend that Obama’s patriotism leaves him out of place at the Convention. And it’s only by falling back on a similarly tired and baseless image of Democrats as deniers of the agency of the disenfranchised that Clegg can label his claim of individual and collective responsibility as conservative. While I and others might question Obama’s choice to compare waste in the Pentagon and welfare budgets, or his implication that stigma is attached to Black success based simply on choices made by Blacks, they show up in the speech to clarify his central assertion about the urgency of collective action. The idea that human beings bear no agency or responsibility is not a Democratic one, and it’s not a leftist one either, unless Rush Limbaugh is granted the authority to define the left. What is a leftist idea – and sometimes a Democratic one – is that human responsibility extends beyond the individual, or the family, to a broader community, that problems faced by collectives can be faced and defeated through collective action, that government in its purest and most justified form represents a vehichle for the achievement of individual strivings and collective aspirations through collective solutions – and that when a community, and its government, abdicate its responsibility to those wronged, they erodes, not protect, the conditions for the flourishing of the human liberty to which they are each individually born. As Obama says:

If there is a child on the south side of Chicago who can’t read, that matters to me, even if it’s not my child. If there’s a senior citizen somewhere who can’t pay for their prescription drugs, and has to choose between medicine and the rent, that makes my life poorer, even if it’s not my grandparent. If there’s an Arab American family being rounded up without benefit of an attorney or due process, that threatens my civil liberties. It is that fundamental belief, it is that fundamental belief, I am my brother’s keeper, I am my sister’s keeper that makes this country work. It’s what allows us to pursue our individual dreams and yet still come together as one American family. E pluribus unum.

And to argue that Obama’s celebration of that unum, and his assertion that there’s “one America,” make him an anti-multiculturalist depends on an assumption that that one America is defined on the terms of its white constituents. Clegg would be right to argue that Obama’s no separatist – but neither are the Democrats, and neither are many on the left either. But the narrative he tells of his Kenyan and Kansan parents isn’t a melting pot that forges homogeneity either – he even uses the d-word which has become anathema in National Review circles:

My parents shared not only an improbable love, they shared an abiding faith in the possibilities of this nation. They would give me an African name, Barack, or ”blessed,” believing that in a tolerant America your name is no barrier to success. They imagined me going to the best schools in the land, even though they weren’t rich, because in a generous America you don’t have to be rich to achieve your potential…I stand here today, grateful for the diversity of my heritage, aware that my parents’ dreams live on in my two precious daughters. I stand here knowing that my story is part of the larger American story, that I owe a debt to all of those who came before me, and that, in no other country on earth, is my story even possible.

I’d like to know more about Obama’s family and his struggle for and forging of a personal identity. Fortunately, he’s written a meditation on the topic, “Dreams of My Father,” which I hope to read soon. Maybe Roger Clegg should too.