Kate Andrias (Columbia University – Law School) has posted The Contested Constitution: Plutocrats, Right-Wing Populists, and Labor Rights in the U.S. (Rivista Di Diritti Comparati, 2025) on SSRN. Here is the abstract:
Constitutional labor rights have long been negligible in the United States. Now, with the ascendance of Donald Trump’s right-wing authoritarianism, even statutory labor rights are under threat. Yet there is an apparent paradox: While the Trump Administration seeks to declare the NLRB unconstitutional and has decimated federal workers’ rights, Trump’s “Make America Great Again” (MAGA) movement rose to power in part by invoking the plight of the American worker. The more populist wing of the American Right does not expressly challenge the constitutionality of labor law. Indeed, some right-wing populists urge an expansion of labor rights, emphasizing such goals as the need to restore the dignity of work.
This Article, written for a symposium on comparative constitutional rights, considers the seemingly opposing camps regarding labor rights in the contemporary American Right—the “plutocrat wing” and the “populist wing.” It situates their views on labor rights amid the historical debate about such rights in the United States. It then contrasts the plutocrat and populist approaches with the contemporary labor movement’s own aspirations for labor rights. Through exploring the various approaches to labor rights, I aim first to elaborate the constitutional vision of the emerging authoritarian regime in the United States, which has parallels around the world, as well as to draw out a more promising, pro-democratic alternative. Second, the examination helps gain purchase on debates about constitutional rights—how they are forged, their value, and their limits. The experience of labor rights in the United States, including the recent assault on the constitutional status of labor from the Right, underscores that constitutional rights are contingent and contested, a product of democratic struggle rather than “natural” or “human.” As such, constitutional rights are inseparable from the broader political economy; they are both constituted by it and constitutive of it. The account of labor rights further shows that constitutional rights are not always a force for good; constitutionalism can serve as a strategy of political domination as well as emancipation. Moreover, questions of “rights” cannot be viewed separately from questions of constitutional structure. Ultimately, advancing a more ambitious, pro-worker, pro-democracy constitutional vision—one that addresses both rights and structure—is an essential part of combatting the rise of the authoritarian constitution and must be part and parcel of a broader effort to transform the political economy.
Recommended.