Is collective bargaining a fundamental right that is enshrined in the US Constitution?

Posted on June 2, 2011


The Myths

1. Collective bargaining is a fundamental right that is protected by the freedom to assemble clause of the First Amendment.

2. Collective bargaining is one of those fundamental rights that are implied by the 9th Amendment

3. The US Congress is granted the power to establish uniform collective bargaining laws by the commerce clause of the Constitution.

The Truth

The US Constitution and the Bill of Rights were written to protect individual rights not collective rights. Collective bargaining is a collective right. Such rights are based on a philosophy that is fundamentally different from the philosophy of individual natural rights that is the foundation of our Constitution and Bill of Rights. Collective bargaining is protected by neither the First Amendment nor the Ninth Amendment. The Supreme Court ruled incorrectly in the 1937 case National Labor Relations Board v. Jones & Laughlin Steel Corporation. This ruling conflicted with the meaning of the Interstate Commerce Clause that was universally accepted by the framers of the Constitution.

The Facts

Our founding fathers believed very strongly that our rights are Natural Rights. Individuals are given their Natural Rights directly by the creator of nature, God.  All individuals are free to exercise all of their rights as long as they do not harm others or interfere with the rights of others. The Constitution and the Bill of Rights were written to limit the power of the Federal Government and prevent it from harming our individual rights.

 Collective rights are rights given to a group of individuals. This group can consist of the entire human race, all citizens of a nation, a specific class of people living in a nation, all people of a certain race, a labor union, or many other types. The majority of rights are given to the group. Individuals belonging to this group may have some rights but the group rights out way the individual. The philosophy of collective rights can be traced back to the 18th century French philosopher Jacques Rousseau. Our founding fathers were aware of the works of Jacques Rousseau and rejected them. They did not include any protection for collective rights when they wrote the Constitution and the Bill of Rights.

 The freedom to peaceably assemble, which is sometimes called the right of association, is an individual natural right protected by the First Amendment. This right protects the individual’s right to assemble as well as the right not to assemble. This right gives individuals the freedom to not join a group as well as the freedom to join any group. Collective bargaining violates the right of individuals to not join a union. In 28 States workers are forced to join a union, or pay dues to the union, in order to get a job, if the company is unionized.

 When individuals choose to join a group or associate with members of a group they do not surrender their individual rights. Unions by their very nature force individuals to give up most of their individual rights in relation to entering contracts. Individual members of unions do not have the right to negotiate their own contracts. They must accept the contract negotiated between the union and management. All it takes for the company to unionize is a positive vote from more than 50 percent of the company’s workers. There is usually only a limited protection for the rights of those that did not wish to join the union.

 Individuals have a right to assemble into unions but there is no right that forces the owner/management of a company to negotiate with that union. Forcing the owner/management of a company to negotiate with a union is a violation of the management’s right to associate with whomever they choose.

Although the Ninth Amendment states the people have more rights than those listed by Bill of Rights, the rights this amendment refers to are individual natural rights. Since collective bargaining is collective right it is not protected by this amendment.

Contrary to rulings by the Supreme Court, the interstate commerce clause does not authorize the creation of nationwide labor standards. Collective bargaining, for such industries as the steel, food workers, and textile industries does not directly impact the large-scale transportation of goods between States.

 Although collective bargaining rights are not fundamental rights protected by the US Constitution there is nothing in the US Constitution that prevents individual States from treating them as protected rights. Some State constitutions do in fact recognize collective bargaining as right. Other States have laws that protect collective bargaining and laws that establish uniform collective bargaining protections.

The Proof

The founding fathers wrote extensively of their belief in individual natural Rights. This was one of the more common topics discussed in their writings. John Locke was the source most often used by them when they formulated their political philosophy. William Blackstone and Montesquieu were also very popular sources the founding fathers used to formulate their political philosophy. All three authors wrote extensively of individual natural rights.

 Individual natural rights were a frequent topic of discussion during the Constitution Convention debates and the congressional debates for the Bill of Rights. Collective rights were not mentioned neither were collective bargaining rights.

 I discuss the original meaning of the Commerce Clause in my post

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