For those of us who grew up in times and places where “socialist” was not considered an insulting adjective, May Day still means something. And notably more so if a person happens to live in one of the 170 countries or so where the regulation of working conditions, hours, wages, etc. is loose at best. Since it is May 1, nostalgic or irrelevant as it may sound to some, a question comes to mind: how beneficial has the constitutional rights revolution been to workers’ interests or labor’s cause more generally?
The relations between constitutional law and labor have always been ambivalent. Lochner is often mentioned as an example of the uber-libertarian, social context-less conceptualization of rights. At least from the late 1970s to early 1990s, when the idea of economic liberalization was in vogue (Milton Friedman, Margaret Thatcher and so on), there seemed to be a deep, ideological affinity between the conception of rights as essentially negative liberties and neo-liberal, small-state social and economic thought. The dominant notion of rights as negative freedoms seems to be based upon a view of society as composed of an unencumbered, autonomous and self-sufficient private sphere, whose members’ full realization of freedom is constantly threatened by the long arm of the encroaching state. Deregulation and privatization, free and “flexible” markets (at least as long as no government bailout is needed), economic efficiency and fiscal responsibility (the latter often perceived as a call for reduced public spending on social programs) were all fundamentals of the 1980s and 1990s orthodoxy of economic neo-liberalism. These objectives share a close affinity with concepts such as individualism, social atomism, and near-existential fear of “big-brother” state that inform the hegemonic discourses of rights. And to that one may add the practical fact that “unregistered” workers (e.g. illegal immigrants) are often not entitled to many constitutional and legal protections that citizens or legal immigrants enjoy.
Having said that, my impression is that the last decade or so has seen some direction change, with the blatant anti-workers line of the 1980s giving way to a relatively more balanced approach by policy-makers and constitutional courts alike. The right to unionize, strike, picketing, or collective bargaining, and certainly issues such as safe or harassment-free working environment, or issues of equity in hiring, promotion, diversity, or entitlement to benefits are taken quite seriously by courts. Likewise, subsistence rights jurisprudence has had some positive implications on the constitutional status of workers rights. Still, it seems that the contemporaneous decline of the Keynesian welfare state and rise of individual rights discourse is not coincidental, and in some cases may even be two sides of the same coin.