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Unions, the Constitution and the right to organize

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Every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution can be valid.

Alexander Hamilton in Federalist 78

The first paragraph of this article is extracted from Chap. 10 of my recent book Reversing America's Decline: Jefferson's Remedy. The proposal contained in this paragraph would void those provisions of the Taft-Hartley Act that discourage unionization.



Reads now: (There is no existing amendment establishing the right to organize.)

Suggested language: "The right of the people to organize or join trade unions and student unions shall not be infringed. Such trade and student unions being consistent with the people's well being and life satisfaction, the organization of and membership in them shall not be impeded either by management intervention, by any fear of retaliation or by the imposition of voting procedures that discourage the formation or continuance of trade or student unions."


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The above proposal is supported by the data presented in Chapter 7 of Reversing America's Decline. This data shows high union densities to be consistently correlated with high rankings in international indicators of competitiveness and the quality of life. While these correlations do not prove that union density has a causal relationship to these factors, they do prove that high union densities, high competitiveness rankings, and high quality-of-life rankings can (and do) co-exist. Given the tenor of our Constitution and the practical negatives associated with discouraging unionization, it is time we altered our national anti-union policies. We should welcome stronger unions as a counterbalances to our government's excessive powers.

A little history

The Taft-Hartley Act was passed over Truman's veto in 1947 (during the McCarthy era). Congress was irritated by an increase in strikes following World War II. It was also influenced by reports that some union leaders were communists or communist sympathizers. Truman refused to sign the bill on the grounds that weakening unions would "weaken democracy." He added that unions were our "bulwark" against "totalitarianism" and would be threatened by Taft-Hartley.[1] The Bill was passed, nevertheless, and ordinary Americans are still suffering from its passage.

The tenor of our Constitution

Hamilton wrote that legislation contrary to the tenor of our Constitution is void. The tenor of our Constitution appears to this reader to consist of two main elements. The first of these elements is that we are a self-governed people. This theme runs through all its articles and amendments and is supported by the federalist papers, which Jefferson felt expressed its "genuine meaning."[2] The second element is that our government must protect the weak from the strong. The Bill of Rights, our other seventeen amendments, the separation of powers, the election of our legislators, our system of checks and balances, and the lifetime tenure of our US Supreme Court were designed to avert tyranny and thus protect the weak from the strong. Taft-Hartley, on the other hand, protects the strong (corporations) from the weak (their employees). While it appears that Hamilton would have regarded the Taft-Hartley Act as unconstitutional, it has never been so regarded by the US Supreme Court.
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The practical negatives of our anti-union policies

The correlations alluded to above suggest that our anti-union policies may be contributing to our declining international rankings. In addition, there is strong evidence suggesting that our declining unionism is associated with our ever-increasing income inequality. As union density in the US has declined during the past half century, our income gap has widened proportionately.[3] Finally, there is evidence to suggest that declining union density may be affecting the end result sought by our Constitution: human happiness. While union density is associated with all of the economic and political outcomes, its strongest associations are with life satisfaction.[4]


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Neal Herrick is author of the award-wining After Patrick Henry (2009). His most recent book is (2014) Reversing America’s Decline. He is a former sailor, soldier, auto worker, railroad worker, assistant college football coach, (more...)

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Support a constitutional right to organize for emp... by Neal Herrick on Friday, May 2, 2014 at 3:02:02 PM
Another great article by Herrick!One detail: McCar... by Charles Roll on Friday, May 2, 2014 at 3:26:33 PM
I have always considered union organization to be ... by Charles Roll on Friday, May 2, 2014 at 3:37:28 PM
However, in practical terms for US labor law, the... by Charles Roll on Friday, May 2, 2014 at 3:46:52 PM