The New Digest is delighted to present an essay by Paul D. Cupp, one of our occasional contributors. Mr. Cupp is a law student at the Antonin Scalia Law School at George Mason University.
Corruptio optima pessima: The corruption of the best is the worst.
The corruption of the best is the worst, and this is most evident with regard to misrepresentations of the natural law tradition. While conservative legal thought is experiencing something of a renaissance, the same tendencies that led to the eclipse of natural law jurisprudence are now threatening to thwart its revival. This, unfortunately, is what we see in a recent law review article by the esteemed labor lawyer, Alex McDonald, who claims that our modern labor unions are “government-backed” monopolies that are violative of natural law.
The corrosive tendency that lurks in the shadows of our legal renaissance is legal formalism, or as I refer to it, the natural law tradition’s evil twin. Legal formalism in the American context has often cloaked itself in the terminology of natural law, using categories like “natural rights” and “individual freedom,” but divorces these concepts from the Aristotelian framework that makes them meaningful in a social context. Without a deeper understanding of man’s always-and-everywhere social nature, legal formalism’s attempts to invoke “natural rights” typically result in Lochner-era liberalism, which means the maximization of individual autonomy at the expense of the common good.
We see natural rights being invoked in this denuded way by McDonald in his “Originalism, Social Contract, and Labor Rights: What the Reawakening of Natural Laws Means for Exclusive Union Representation.” In his article, McDonald argues that the privilege of exclusive representation that unions enjoy in the bargaining process is a violation of workers’ natural rights. Exclusive representation is the legal doctrine enshrined in the National Labor Relations Act of 1935 (NLRA), which grants one union the exclusive right to represent all the workers in a particular bargaining unit, which normally means all the workers at one particular worksite. This, of course, is only after the workers themselves elect the union as their exclusive representative. McDonald argues that this exclusive representation “interferes with the employees’ right to pursue their chosen calling on their own terms.” By obtaining this privilege of exclusive representation, McDonald contends that unions are “government-backed monopolies” which are inherently hostile to our common law patrimony and the natural law tradition.
To untangle and respond to McDonald’s argument, we must first ask some threshold questions: Which natural law tradition is he referring to? And why am I raising such a stink about it? The first question is clarified by McDonald’s reliance on John Locke, whom he refers to as “perhaps the most famous” of natural-law philosophers. The second is answered by examining the atomistic basis of Locke’s political philosophy, and how it fails to properly integrate natural rights within the common good.
A full refutation of Locke’s “natural law” is beyond the scope of this article, but a few key points must be confronted head-on. The defining characteristic of Locke’s political philosophy, which distinguishes him from Aristotle and Aquinas, is that it is not grounded in nature. Rather, for Locke, the political community is a product of human will, not something grounded in man’s intrinsically social and political constitution. Before instantiating a political community through a social “compact,” Locke holds that men have natural rights, such as life, liberty, and property, in the “state of nature.” While in the state of nature, men have no political obligations to each other, nor a duty to look to the political common good, and may exercise their rights as they so choose. Considerations of the common good only come into play once expressly chosen, and these are always experienced as an external curtailing of otherwise unconstrained natural rights.
Contrast this with the historically rooted view held by the Aristotelian tradition, which doesn’t posit a state of nature in which man has natural rights that precede his entry into the political community, but instead recognizes that man has always and everywhere since the dawn of time had public obligations that accompany his rights. Duties to the common good aren’t imposed externally by a government that one first has to consent to, but are rather part and parcel of our very existence as people who, from the moment of birth, are grafted into families, neighborhoods, communities, and nations. On this view, we see that rights always have natural limits set by our existing relations, not to mention the limits of our human nature, and are always accompanied by corresponding duties.
A more realistic view of the natural law recognizes that rights are naturally shaped by, and simultaneously ordered toward, both the good of the individual and the community. This is because individuals find their fulfillment in a communal context, a natural law principle best articulated by Aquinas: “He that seeks the good of the many, seeks in consequence his own good, for two reasons. First, because the individual good is impossible without the common good of the family, state, or kingdom… Second, because, since man is a part of the home and state, he must consider what is good for him by being prudent about the good of the many.”
Now, how does all this philosophizing make a difference when applied to McDonald’s argument against exclusive representation? It does so precisely because McDonald’s Lockean-inflected argument doesn’t consider the demands of the common good when he condemns exclusive representation as a violation of workers’ natural rights. In addition, Locke’s view of government insufficiently credits the role of government as the guardian of the common good, since he takes the impoverished view that government’s “great and chief end” is only “the preservation of [private] property.” Most of our Founding Fathers set much richer goals for our political community, typified by John Adams, who held that “government is a frame, a scheme, a system, a combination of powers for a certain end, namely, – the good of the whole community. The public good, the salus populi, is the professed end of all government.”
The reality is that men need government precisely because the natural law must be prudently applied to present circumstances while taking into account the common good, which extends beyond the simple protection of property rights. Since this application of natural law could have many different, yet legitimate, implementations, a government is needed to decide and adjudicate. This process of selecting a particular implementation of the natural law which balances both individual rights and the common good in an integrated plan is called a determinatio (determination), and this prerogative belongs to each political community’s duly constituted governors. A legitimate determinatio is precisely what the doctrine of exclusive representation was when Congress included it in the NLRA. The legal scholar, Jud Campbell, recognizes this philosophy as operative in our Founding Era constitutionalism, which he claims “allowed for restrictions of natural liberty to promote the public good – generally defined as the good of the society as a whole.”
The reason that Congress incorporated exclusive representation in labor law is that competition between multiple unions within the same bargaining unit was undermining the bargaining power of workers. Management would pit unions in the same bargaining unit against each other in the negotiation process, thereby extracting more employer-friendly agreements. To remedy these perverse incentives, Congress created the privilege of exclusive representation, which eliminated competition between unions vis-à-vis employers, ensuring that employers could not play them off each other by forcing a race to the bottom. While there may have been better ways to address this issue at the time, and acknowledging that exclusive representation comes with its own set of bad incentives, we should reject McDonald’s denial of the legislature’s power to shape the rights of workers through exclusive representation. McDonald’s radical view of natural property rights leaves little room for the government to set the terms of collective bargaining at all. His view would have most workers negotiate with employers on their own, a position that he somehow holds to be advantageous for workers.
Instead of adopting McDonald’s individualistic version of the natural law to condemn the principle of exclusive representation, which amounts to throwing the baby out with the bathwater, policymakers should focus on modifying the current system to account for certain deficiencies that can accompany exclusive representation. I present here three proposals from three labor law commentators who envision a better path forward to remedy the imperfections of the exclusive representation system.
A significant pain point in our current labor regime is that it’s hard to certify a union and just as hard to decertify one. This isn’t a problem of exclusive representation directly, however it indirectly amplifies the tension when a union that is no longer serving workers well is also difficult to replace. Samuel Estreicher, a professor at the NYU School of Law, contends that unionism should be “Easy In, Easy Out.” Estreicher’s proposed reform would make union elections easier to hold and recurring. This would “make representation elections more like general political elections, to make it easier to vote in a union (if that is the employees’ preference), and to make it easier to vote the union out if the employees no longer believe the bargaining agent is accountable to them or worth the dues they pay.” This reform would ensure that unions that hold the privilege of exclusive representation are constantly working to win the support of their members heading into each union election cycle.
Before 1955, unions competed for members within the same bargaining unit by persuading workers to switch their allegiance to a competitor, a tactic also known as “raiding”. Marty Manley highlighted in American Compass that union membership plummeted when the AFL merged with the CIO in 1955, effectively creating a labor cartel that eliminated raiding between unions. Manley argues for the reintroduction of raiding to reinvigorate this competition. Important to note is that raiding does not eliminate exclusive representation, as the union that is presently certified still retains the exclusive privilege of bargaining with the employer. This proposal strikes a proper balance of power between workers and employers, while still allowing unions to compete effectively. Since the prevailing union would retain the right of exclusive representation, raiding would expose unions to healthy competition between themselves while making sure this competition doesn’t take place at the same bargaining table as the employer, who is always incentivized to force a race to the bottom.
Lastly, Daniel Kishi at American Compass has recently published a paper calling for a more robust enforcement of the “duty of fair representation” (DFR) to combat the political activities of unions that run contrary to the preferences of the workers they represent. Kishi points out that the DFR—which legally obligates unions to represent workers “fairly, impartially, and in good faith” and has so far only been applied to representational matters in the workplace—should also extend to union politicking. This would help alleviate workers’ concerns that the doctrine of exclusive representation would bind them to a union that will engage in the political domain without meaningful consultation beforehand. Expanding enforcement of the DFR to political activities would assure that unions better represent all workers in the bargaining unit, thereby reducing the unfortunate consequence of exclusive representation which leaves more workers than necessary at odds with the political commitments of their union.
While exclusive representation is an imperfect part of an imperfect system, it serves as a key doctrine in our present labor law, which is a reasonable determinatio ordered to the common good. The revival of natural law jurisprudence shouldn’t be used as an axe to cut down reasonable decisions made by elected officials. As the much-needed reform of conservative legal philosophy proceeds apace by incorporating elements of the natural law tradition, conservatives should be on guard that venerable aspects of that tradition, such as natural rights, don’t get subverted as an excuse to reintroduce the libertarianism that we’ve already soundly rejected.