Introduction
The goal of full employment and the highest quality of life for all is at the heart of our struggle to make human rights more sacred than property interests. To accomplish this goal in the United States will take a mass, organized movement that through progressive stages and leaps reforms and ultimately revolutionizes our relations of production. An important aspect of this movement will be the legal forms that come to crystallize and institutionalize the fundamental economic changes won by the People.
The tactics and strategy in the economic struggle always necessarily include political and legislative goals. As our efforts address the most fundamental political economic issues, it is important that we have goals, strategy and tactics concerning the most fundamental law of the land, the Constitution, no matter how much the ruling class is above even that authority for now.
Why a right to a job: a historical materialist perspective
Historical materialists focus on the working class and class struggle as keys to revolutionary social change in this epoch. This is the perspective worked out by Engels and Marx which holds that social ideas, ideals and laws reflect and are ultimately determined, limited and changed by changes in the relations and forces of material production; and not quite equally so vice-versa. Thus, historical materialism sees Constitutional changes, like all legal change, as ultimately reflecting underlying class struggles. In our era of the bourgeoisie, we herald the rise of the working class to emancipate itself and all of the oppressed groups and despised classes (though taking longer than we thought!)
This approach sees that the US, connected with most of the globe more closely than ever, has capitalist relations of production. We have wage-labor and private ownership of the basic means of production.
The institution of wage-labor makes the need for a job fundamental for the overwhelming majority of the population, for they must work for a living. This institution of wage-labor means most people must sell their labor power to obtain the basic necessities of life, and avoid personal and social ills. It is not possible for most people to employ themselves in small, self-sufficient economic units and survive as they did in earlier societies. The economic system is highly socialized. That is it consists of a large number of interdependent economic enterprises of all sizes. This socialization of labor, or division of labor has reached a new qualitative level and is in some sense global today, for example with 'world cars' and other commodities assembled from geographically scattered points of production.
The right to a job is a mature universal human right now. This is already recognized in Article 23 of the Universal Declaration of Human Rights and indirectly in the United Nations Charter Articles 55 and 56 on promoting full employment and Article 6 of the International Covenant on Civil and Political Rights. The right to a job, or to earn a living, in a world wide web of wage-labor is central in the struggle for economic and human rights and to ameliorate human suffering. For, unemployment is a root cause of our most personal and social tribulations – poverty, hunger, homelessness, urban crisis, crime, suicide, alcoholism, drug addiction, physical and mental illness, wife abuse, child abuse and so on.
With the institution of wage-labor, the right to a job is also fundamental because the exercise of all other basic human rights and freedoms is dependent upon, first, fulfillment of the basic needs for material survival – food, shelter, health care, etc. A job is key to obtaining these. Modern citizens cannot speak, think, vote or travel freely if they cannot eat. They cannot obtain equality before the law or due process without legal counsel at costs. A job at a living wage is a prerequisite for a decent life and for the exercise of all other human rights and liberties. Institutionalized, continuous denial of work to millions of people, permanent mass unemployment (even four percent is mass unemployment) is a violation of a most critical human right undermining all of the human rights of those millions unemployed.
Unemployment is not a necessary part of an efficiently functioning modern industrial economy as many apologists for the American system claim. Rather unemployment is the result of an unplanned economy in which basic production is carried out with the goal of maximizing accumulation of profit for private corporations and individuals. Permanent mass unemployment is also a key tactic for keeping wages down by keeping the demand for jobs high in relation to the supply of jobs. If there were full employment, the bosses would have no scabs to hire to break strikes.
We need a mass movement to do it
The masses of people have a basic and objective motivation and need to support establishing the general right to a job as part of the fundamental law, the Constitution. We will only have a movement if the great many become conscious that it is possible to win such a right, and only if the People wake up from their current Rip Van Winkle sleep.
Because of its place in production, the working class must lead any victorious struggle to institute progressive property laws, rights and the dependent other human rights. To lead, the working class must be class conscious and organized for struggle as a result of objective and subjective experience. That consciousness must include awareness of legal goals, the consciousness taking organizational form as elements of a political program. Because constitutional amendment requires 2/3 majority of the Congress or the state legislatures to propose an amendment and 3/4 majority of the states for ratification, it also requires building a mass movement to accomplish. It is a method for involving masses in making fundamental law as opposed to a few lawyers arguing before a few judges in courts. It is an inherently popular tendency in our jurisprudence. Without ignoring the slow pace of the left movement today and the somnolence of the People, we prepare this legal strategy for the day when again pro-working-class majorities reactive and conscious as in the 1930s.
Partial History of struggle for full employment
The famous People's struggles in the era of the Great Depression won a number of economic reforms. Symbolically, the success and highpoint of the historical political surge for full employment (the actualization of the right to a job) in the US can be measured by the fact that in 1944 President Franklin Roosevelt presented to Congress in his State of the Union address an Economic Bill of Rights and said among other things: We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity an be established for all – regardless of station, race or creed – the right to a useful and remunerative job in the industries of shops or farms or mines of the Nation – but also to education, housing and access to all forms of public facilities and services. According to writer Bertram Ross in 'Rethinking Full Employment' (The Nation, January 17, 1987) 'the result 'of Roosevelt's thrust 'was the introduction in Congress of a full-employment bill. But in 1946 a coalition of conservative lawmakers deleted the 'right to useful and remunerative job' from the original proposal. When finally passed in diluted form, the Employment Act of 1946 expressed a commitment not to full employment but to avoiding depression through the growth of a warfare-welfare state.'
In 1978 The Humphrey-Hawkins full employment act was passed which called for reducing unemployment to four percent. But these two laws are weaker than the goal that Roosevelt articulated in 1944. The movement for economic justice that had pushed Roosevelt so far has slowed down considerably in the decades since. Today one feels that the political pendulum has swung to the other extreme from the reforms and reformist atmosphere of the New Deal era. Humphrey-Hawkins is not the household name it was at one time; and in fact the full employment slogans and laws have been largely relegated to scofflaw scorn until neo-liberalism and globalism are overcome by a new movement.
Yet even in this period of ebb for the movement, the Labor Party is holding up the banner for economic rights, including a proposal for a Constitutional amendment for a right to a decent job as it's number one programmatic element. In my opinion, this is an important step forward in the labor movement's legal strategy for economic rights. If the movement had been able to use its large majorities from the 1930's to constitutionalize some of the fundamental elements of the New Deal, the rollback of the New Deal today might not have proceeded so far under Reagan and his successors.
Although we should not delude ourselves that a right to a job and decent living can be fully guaranteed under capitalist relations of production, the proposal herein is reformist in form, while radical in content. I offer it as a reform pregnant with revolution.
In sum, you have to have a job to live. The right to a job is a radical reform, a fundamental human right and a common sense necessity concerning which political activists should be able to get people's attention, for it is in the interest of the overwhelming majority.
On the other hand, as we would expect in a society where the bourgeoisie is the ruling class, the Constitution already reflects, protects and reproduces the critical bourgeois interests in capitalist relations of production, the right to private ownership in the basic means of production which implies the right to seek maximum private profits and private accumulation of capital through exploitation of wage laborers. Of course, the Constitution doesn't come right out and say it this way. I would say that capitalist powers are codified in the two Fifth Amendment clauses, the Due Process Clause and the Takings Clause. The Due Process Clause provides that no person (including corporations) shall be deprived of property without due process. The Takings Clause provides that no private property shall be taken for public purpose without just compensation.
Our radical legal goal, stated briefly, must be to establish through amendment a Constitutional provision on a right to a job and also provide that it has priority over the right to ownership and control of private property in the basic means of production. So, for example, the rights of workers to jobs would take priority over the corporate prerogative of private property ownership to close a plant, mine, shop or office.
Why a constitutional amendment?
This proposal for a Constitutional Amendment to protect jobs occurred to me in the context of the fight against plant closings in the mid 1980's. As General Motors announced the shocking closing of its Fleetwood and Cadillac plants in Detroit. Rep. John Conyers, D-Mich., drafted a bill for a moratorium on plant closings. Besides the fact that such a law had little chance of passing a Congress and President controlled by big business, if such a law did pass, I was sure that it would be challenged by General Motors as an unconstitutional taking of private property pursuant to the 5th Amendment. I undertook what seemed to me my duty as a people's lawyer to prepare a Constitutional Amendment that could be part of an effective program to protect jobs and win full employment.
The Constitution's Fifth Amendment Due Process and 'Taking' Clauses make imperative the constitutionalization of the job creation and protection rights that so many workers have fought for and believed were theirs for so long. There seems little question that legislation that challenges the monopolies' prerogatives in use of their capital, a necessary element to guarantee jobs and full employment, would be attacked as unconstitutional based on these Fifth Amendment provisions.
The clauses are consecutive in the Fifth Amendment as follows: No person shall... be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation. Throughout their legal history these clauses have been used as a shield for bourgeois private property. The clauses are used to prevent use of basic means of production for the general welfare, which today demands planned management and use of factories, mines, and offices in a way that everyone is assured an opportunity to do productive labor.
Remedy of this unjust interpretation of the two clauses is complicated by the fact that the Fifth Amendment clauses make no distinction between private property in general and PERSONAL property in the non-legal, lay sense. Personal property is appropriately protected by the wording of the Fifth Amendment. Personal property should not be taken without due process or just compensation.
The bourgeoisie and the monopoly media and education propaganda system exploit public confusion over the distinction between these two types of property. The capitalists, like wolves in sheeps' clothing, claim that socialists see individual, personal property (and freedom), and corporate/monopoly, private property (and 'free' enterprise) as equivalent lambs to be slaughtered in the communist revolution. Yet, on the contrary, socialists seek to abolish only private ownership in the basic means of production not personal property in commodities for individual consumption, and in the process seek to establish the freer and fuller all-around development of the individual.
In fact, historically it is interesting to note that the bourgeoisie seemingly have from the time of the establishment of the Constitution played a game of hide and seek concerning private property rights. If as historian Herbert Aptheker argued there was unanimous agreement among the framers of the Constitution that the purpose of government was to protect private property then it is remarkable that provision for protection of private property does not appear in the Constitution before the Bill of Rights Amendments.
It would seem that protection of private property was thoroughly provided for in the judge made, common law, where it was hidden from mass consciousness, perhaps, and known mainly by the elite mandarin class of lawyers. For the framers of the Constitution, who overwhelmingly represented the propertied classes, to frankly and openly include it in the Constitution would have amounted to an unnecessary provocation of the masses, potentially exposing to the working classes a fundamental secret of the capitalist system of exploitation.
However, perhaps ironically, perhaps purposely, the private property protection was smuggled into the Constitution, Trojan horse style, by glossing over the difference between private and personal property, as described above, and by exploiting the masses' legitimate concern for protection of their personal property from unjust governmental seizure. The Fifth Amendment is part of the Bill of Rights, one of the most distinctive imprints of mass popular strength on the Constitution at the time of its creation.
The 'bottom line' is that the law has an hierarchical structure. Obviously, the Constitution prevails over Congressional legislation when the two are in conflict. Thus, the right to a job must be elevated to a Constitutional status to avoid being trumped by the Taking Clause and the Due Process Clause. Otherwise the vast resources and great energy expended in winning jobs legislation will be wasted as it is struck down by a single stroke of Mr. Injustice Rehnquist's pen.
The Constitution's provision for Amendment (Article V) was truly revolutionary for the time that it was enacted and even for today. It essentially recognized for the first time in history that fundamental social and political change is inevitable, and that these changes must be represented in fundamental law. The Amendment provision has even been termed revolutionary. As Herbert Aptheker says in The Early Years of the Republic: The right of revolution is insisted upon in the writings of Madison and Jefferson and was stated at this time with particular clarity by James Wilson, a member of the (Constitutional) Convention, and later an Associate Justice of the Supreme Court of the United States: 'A revolution principle certainly is, and certainly should be taught as a principle of the United States, and of every State of the Union. This revolution principle that the sovereign power residing in the people, they may change their constitution or government whenever they please, is not a principle of discord, rancor or war. It is a principle of melioration, contentment and peace….' These means to amend the Constitution are to be handled by future generations as the generation of the (American) Revolution and the Constitution handled urgent problems before them. Happily, however, and this is one of the significant results of that Revolution and provisions of that Constitution, legality is to be on the side of those seeking such change, be it as fundamental as it may, so long as it reflects the will of the majority of the people. That is , so long as it does not violate the basic precept of the Republic, namely, popular sovereignty.
This provision, used justly, makes the Constitution truly alive and revolution potentially legal. The Amendment provision is a time-tested, eminently lawful, patriotic American method which must be seriously considered and used as a good form for peaceful transition from reforms through democratic revolution. This is an important consideration when radicals, especially communists, have been falsely stereotyped as advocating violent and illegal overthrow of the government. An effort to make radical change through constitutional amendment is a fundamentally LEGAL radical act.
This provision can be used to make law not a fixed and eternal 'truth', but an evolving developing system reflecting social development and collective mass action. Some of the most advanced aspects of US law came through this 'revolutionary' process, of course: the Bill of Rights, the 13th, 14th 15th and 19th Amendments, et al. All progressives have an interest in popularizing a dialectical/historical understanding of law and its specific manifestation in that form in the Amendment provision.
Isn't the right to a job already part of the law?
When I first undertook to investigate the right to a job, I thought it was well-settled in US law that there was none; and even more that it is well settled that monopoly corporations have a right to guarantee that a significant number of people will not have a job or decent income.
However, the former editor of The Guild Practitioner, Attorney Ann Fagan Ginger explained to me that the way to succeed in the fight to get full employment is to argue that full employment is not a new idea, that it is as old as the Constitution itself or at least as the concepts of the New Deal (as discussed above) which people desperately believed were establishing certain economic minimums forever. In other words, there is customary and legal precedent for a fundamental right to earn a living. Readers of The Guild Practitioner know that Ginger is also legendary for founding a new approach to progressive law which is to use international law especially the United Nations Charter, conventions, treaties and covenants in US domestic courts. Author Sam Rosenwein makes this argument based on extensive research into the precedential authority of US jurisprudence and history, as well as international treaties.
The current proposal for Constitutional Amendment must not be considered in contradiction to the approach of Ginger and Rosenwein. Their method gathers ammunition for progressive lawyers who a are fighting continuing battles on behalf of economic victims right now. In those individual cases, nothing should be spared in trying to persuade individual judges that precedent and reason demand protection of a right to a living. Furthermore, as Ginger has often explained, claiming that a right exists in morality and justice, and has existed for a long time in history as an idea is an important method of political education and persuasion of the population. Arguing that racial or gender equality or trade union rights or the right to earn a living are the 'true' American tradition and spirit is important in many ways. It assures some that they are not doing something crazy or way out. It counters charges that we are importing a foreign ideology. It connects us with the majority in history as well as the present. It gives confidence that we can win.
There is a limitation to this approach, because in fact, racism/Jim Crow was the law of the land once, as were and are anti-union and anti-job right statutes and common law. Otherwise, why have we been struggling so hard all of these decades?
In considering the whole body and system of US law and the reality of the economic system which the law reflects, there is little question that the vast majority of courts do not recognize the right to earn a living (citation of General Motors Ypsilanti plant closing case) and the courts do recognize a private property right to deny earning a living. These legal principles are cornerstones of the capitalist system. To deny that these principles are part of our system of legal rules would be almost to deny that the US has a capitalist economic system.
But so what! In different circumstances we must emphasize different aspects of, even contradictory aspects of our legal ideology. As I say above, where arguing an individual case or even bolstering mass confidence in the morality and justness of the fight for a right to a job, it is important to emphasize those glimmerings of enlightened thinking that have appeared once in a while among judges and legislators in response to mass struggles. It is sometimes important to argue that the progressive provisions of the Constitution (including the Preamble) and Declaration of Independence logically imply although do not say directly and explicitly that there must be rights to earn a living and decent income (The draft amendment offered below specifically refers and relies on the Constitutional purposes, stated in the Preamble, to establish justice, promote the general Welfare and secure the Blessings of Liberty). It is important to argue that the well settled international law in UN statutes is that there is such a right, and that these laws are part of US supreme law as treaties.
Yet in considering what must be done to bring mass popular support for statutory and constitutional change, we must emphasize that the overwhelming majority of US judges interpret the law as denying these rights, notwithstanding that this interpretation is contrary to the spirit of America's best traditions as Ginger and Rosenwein argue. In a word, we must not only reinterpret the law, but change it.
A Draft Amendment
Amendment XXVIII
Section 1. Every adult American able and willing to earn a living through paid work has the right to and shall have a free choice among opportunities for useful, productive and fulfilling paid employment at decent real wages or for self-employment.
Section 2. Every adult American unable to work for pay or find employment pursuant to Section 1 has the right to and shall be provided by the Federal and State governments an adequate standard of living that rises with increases in the wealth and productivity of society.
Section 3. Pursuant to the obligation to establish Justice, promote the general Welfare and secure the Blessings of Liberty, the Federal and State governments shall serve as the employers of last resort in insuring fulfillment of Section 1.
Section 4. In a case where Section 1 is in conflict with the Amendment V provision or Amendment XIV provision reading 'Nor shall private property be taken for public use without just compensation,” Section 1 of Amendment XVIII shall prevail
Section 5. In a case where Section 1 is in conflict with the Amendment V provision or Amendment XIV provision that no person shall be deprived of property, without due process of law, Section 1 of Amendment XXVIII shall prevail.
Section 6. The common law doctrine of employment-at-will is hereby abolished. All employment discharge shall be with just cause.
Section 7. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Time does not permit an extensive discussion of a number of issues and questions raised by this draft. I will do an abbreviated annotation of the proposed amendment.
The language in Sections 1 and 2 is based on The Income and Jobs Action Act, a bill introduced by Rep. John Conyers of Michigan and Charles Hayes of Illinois in the mid 1980's. Regarding that wording, Bertram Gross said in the second part of his two part article in The Nation on the Hayes-Conyers Bill ('Making an Issue of Full Employment) said:
'...First, it replaces the old 'right to a job' with the 'right to earn a living', as suggested by Ann Fagan Ginger of the Meiklejohn Civil Liberties Institute. Income rights for those unable to work for pay or find a suitable job are defined in terms of 'an adequate standard of living that rises with increases in the wealth and productivity of the society.' In uniting job rights and income rights, it strengthens each concept.'
I have merely proposed constitutionalizing the 'Fundamental Rights' section of the Hayes-Conyers bill (The Quality of Life Action Act or The Income and Jobs Action Act).
This draft Constitutional Amendment for a Right to Earn a Living, pursuant to its Section 7 envisions comprehensive implementation by Congressional Acts, such as the bills of Hayes and Conyers (HR 1398 of 1986 and HR 2870 of 1987 the Economic Bill of Rights Act'); or former Congressperson Ronald Dellums' A Living Wage, Jobs For All Act of 1997 (HR 1050); or the Jobs Bill by Rep. Matthew Martinez, D-Calif. The Living Wage Ordinances now sweeping the country could even play a role in fulfilling the broad Constitutional mandate.
This draft might be expanded to a full 2nd Constitutional Bill of Rights, an Economic Bill of Rights, as President Roosevelt anticipated in his State of the Union Messages in 1941 and 1944.
Employment law Attorney Larry Daves suggested the inclusion of the provision abolishing the employment-at-will doctrine.
This is truly a draft and I welcome comments, criticisms and suggestions from readers of this article.
Conclusion
The jobs movement's legal aims must be well chosen. The substance of the movement has been shaped by US social and economic reality – the history of struggle and the development of the relations and forces of production. We are ripe for a right to a job. But the legal form must be as profound as the substance. In the US rights are made legally most binding not only by statute, but by making them part of the Constitution. When the people rise the next time, let the people's lawyers be prepared with our writs.
Sources:
Sam Rosenwein, 'The Right to Earn a Living,' The Guild Practitioner, Vol. 49 number 1 1987; 'A Special Issue on New U.S. Human Rights Laws,' The Guild Practitioner, Vol. 51, number 3, summer 1994.
Victor Perlo, Superprofits and Crises, International, 1988.
Herbert Aptheker, Early Years of the Republic, International Publishers, 1989.
James Lawler, 'Freedom and the U.S. Constitution: Aspects of the Legal Theory of Mitchell Franklin,' The Guild Practitioner, Fall 1987.
Franklin Roosevelt, State of the Union Message of 1944.
Prof. William P. Quigley, 'The Right to Work and Earn a Living Wage: A Proposed Constitutional Amendment,' Director of Gillis Poverty Law Center, Loyola University School of Law. www.loyno.edu/~quigley/Articles/nyclawrev.pdf
