Constitutional Protections Where (and When) We Would Least Expect Them
This chapter examines the campaigns to add labor rights to state constitutions. The quintessential arguments about America's exceptional liberalism and its uniquely negative-rights culture have focused on the labor movement, which Louis Hartz has argued was a participant in—rather than a rival of—the dominant economic and ideological regime. The chapter first considers the labor provisions of state constitutions before discussing the ways that labor leaders and organizations influenced the drafting of new constitutions and amendments to existing constitutions. It then explains how labor rights were created not only to overturn particular court decisions, but also to preempt possible litigation. It also shows how labor organizations used constitutional rights to dictate state legislatures what they had to do while simultaneously telling courts what they could not do. The chapter demonstrates that, even in the area of labor regulation, Americans have successfully pursued the creation of positive rights.
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