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Sunday, November 25, 2018


LFC is correct.  The course I taught was Soc Sci 5.  I actually took Soc Sci 2 with Beer my Freshman year.  It was a great course, and he was a dynamic lecturer, with red hair and a big red mustache.  The next year I scrubbed his floors to earn money for my trips to New London to see my girl friend, Susie, now my wife.  Beer's wife told me a wonderful story as I scrubbed, but that is for another day.


Anonymous said...

"MS is correct" ?
LFC is correct?

Robert Paul Wolff said...

MS sent me an email noting that the correction came from LFC. I was saying that MS was correct about that. Sorry for the confusion. Sometimes I hate the Internet as a mode of communication.

MS said...

While we are in confession of error mode, I have an error of my own to confess, which will please many readers. In a prior comment, I remarked the decision this summer by the S. Ct. in Janus v AFSCME (holding nonunion public employees cannot be required to pay union dues) was speciously reasoned. When I made the remark, I had not actually read the decision–I was relying on a summary, as well as the fact it was written by J. Alito, whose decisions when on the 3rd Cir. Ct. never impressed me, & by the fact the decision reversed a 40-yr. old precedent, Abood v Det. Bd. of Ed., which was a 9-0 decision–9-0 precedents are rarely overturned as erroneous; e.g., Plessy v Ferguson (separate but equal), reversed by Brown v Topeka, was an 8-1 decision.

Just to confirm I was correct, I decided to read Janus. To my shock & dismay, I concluded the decision is far from specious. Although I still believe it is erroneous, & J. Kagan’s dissent should have held sway, Alito’s reasoning is based on a perspective I believe many of this blog’s readers would find compelling. He reasoned a citizen, protected by the 1st Amend., should not be compelled by law to subsidize speech w/ which the citizen does not agree. In Abood, the Ct. had held this reasoning only applied to the portion of the union dues that went to promoting the union’s political activities, i.e., supporting political candidates who favored unions, etc. In Janus, the plaintiff argued he disagreed w/ collective bargaining in the public sector altogether because everything public unions do have political consequences, & he should not be required to pay to support it. The Ct. agreed, noting activities of private sector unions & public sector unions are distinguishable in 2 respects: private sector employees are not protected by the 1st Amend., & the effects of collective bargaining by public sector unions in general have unavoidable political consequences, e.g., increasing the wages of public sector employees results in less financial resources available for other gov. activities, e.g., fixing roads. This is a persuasive argument, difficult to rebut. Kagan made a valiant effort, arguing requiring public unions to be the collective bargaining agent for all public employees satisfies a “compelling state interest”–the sine qua non for overriding the 1st Amend.–by reducing intra employment disputes by allowing the public employer to deal w/ 1 union, rather than w/ several unions fighting over the support of the employees. Her argument, unfortunately, did not carry the day – it was obviously doomed once Gorsuch was appointed to the Ct.

Some of you may be questioning, if Alito’s argument is meritorious, how is it I am required to pay income taxes used to subsidize policies I oppose, e.g., the war in Iraq. The answer–the 16th Amendment, which made the assessment of income taxes constitutional, despite the 1st Amendment.

There is another argument which the dissent overlooked that is, I believe, even better than Kagan’s (I know, how presumptuous of me). I alluded to this argument in a prior comment, & it is based on Locke’s labor theory of property. Under the 5th Amend., gov. cannot confiscate private property except for a public use & w/ just compensation. :Public unions, required by law to represent all of the employees, regardless whether they pay union dues, must expend labor & money in order to do so–e.g., grievance procedures, collective bargaining. The non-paying employees do not pay for this labor. I would argue this constitutes an unlawful “taking” under the 5th Amend.–the labor of the union officials is being confiscated for a public use w/o just compensation. This turns on the federal judiciary having adopted the position that one’s own labor constitutes property. While I have searched for a fed. decision so holding, I have been unable to find one (I no longer have access to Lexis or Westlaw). So, if there are any atty.’s reading this comment, I would appreciate knowing if you are aware of such a fed. court decision (preferably by the S. Ct.)

MS said...

Eureka! I found it! In Butchers’ Union Co. v. Crescent City Co., 111 U.S. 746 (1884), one of the famous Slaughterhouse Cases, Justice Field concurring, quoting Adam Smith, wrote: “It has been well said that ‘the property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable.’” Justice Bradley, concurring, joined by Justices Harlan and Woods, wrote: “[T]hose who had already adopted the prohibited pursuits in New Orleans [the profession of slaughtering animals, which Louisiana had awarded as a monopoly to certain abattoirs] were deprived by the law in question of their property as well as their liberty without due process of law.”

The decision in Butchers’ Union has never been overturned. What does this mean for public sector labor unions prohibited by the Janus decision from requiring that employees who are unwilling to join the union to pay their fair share of the union dues? I submit that it means the following. If a state’s labor law requires its public sector labor unions to provide union representation to all of its employees, regardless whether those employees belong to the union and do not pay union dues, and requires that such employees are entitled to the benefits of the wages negotiated by the union, and enjoy union representation in grievance and arbitration proceedings, that such legislation constitutes a “taking” in violation of the 5th Amendment provision that precludes the confiscation of a citizen’s property – which includes the citizen’s labor under Butchers’ Union – without “just compensation.” The only way that the decision in Janus, the decision in Butchers’ Union, and the 5th Amendment’s requirement that a state’s confiscation of private property be compensated w/ just compensation, can be made compatible is that public unions and public employers must be allowed to restrict the benefits of collective bargaining only to those employees who are willing to pay their fair share of the union dues. To allow public employees to enjoy the benefits of such collective bargaining without compensating the union’s employees who expend their labor in negotiating the collective bargaining agreement and representing the employees in grievance and arbitration proceedings, constitutes taking their property – their labor – without just compensation. If a public employee is unwilling to join the union and pay his/her fair share of the union dues, then that employee has elected to forego the increased wages the union will negotiate; has elected to forego the benefits, e.g., retirement benefits, sick leave benefits, etc., the union will negotiate; and has elected to forego union representation in grievance and arbitration proceedings. Under Janus, they cannot be compelled to make those payments. By the same token, if they are not willing to pay union dues, the 5th Amendment precludes them from getting a free ride.

I am going to write a letter to the legal department of AFSCME and advise them of this argument. AFSCME can file a lawsuit in federal district court challenging the constitutionality of any state’s labor laws that require the union to provide collective bargaining services to all public employees, including those unwilling to pay union dues, in violation of the 5th Amendment, which by S. Ct. decision, has been made applicable to the states under the 14th Amendment.