Liberty, Equality, & Solidarity: A Constitutional Defense of Modern Work Law.

I. INTRODUCTION 394 II. THE HISTORY OF LIBERTY IN 397 FREE AMERICAN WORK LAW A. Pre-Industrial Era 398 1. The English Implied Term of One-Year 398 2. Forming a Union [...]
American work-law jurisprudence reflects a tension between the legal conceptions of positive and negative liberty. Which of these conceptions predominates has varied across historical periods, with judicial support for negative liberties reaching its apex during the Lochner era and waning during the New Deal. The Supreme Court has recently decided two lines of cases concerning the Federal Arbitration Act and the National Labor Relations Act that indicate that judicial opinion is swinging back in favor of strong negative liberties at the expense of congressionally enshrined positive liberties. This shift appears to be grounded in an understanding of the Constitution that favors absolute negative liberty, even where it conflicts with democratically selected positive liberties. This understanding of the Constitution is out of step with how the Framers understood the constitutional balance between negative and positive liberties. Subsequent Amendments have only further strengthened constitutional protections for positive liberties. Not only is the shift back towards a negative-liberty view of the Constitution anachronistic, it threatens the wellbeing of workers in the United States. Statutorily protected positive liberties reinforce worker's ability to vote, build wealth, and hold their employers accountable. Without these protections, the legal and economic landscape is likely to return to that which existed during the Gilded Age, not that which the Framers envisioned.