Natural Law & Labor Law

In his recently released book, Mere Natural Law, Professor Hadley Arkes examines the relationship between originalism and natural law. He argues that, while the two were once seen as antonyms, they are in fact linked. The founding generation was steeped in natural law and social-contract philosophy. They wrote the Constitution with those concepts in mind, and they expected their handiwork to be interpreted and applied accordingly. Originalism, in turn, requires us to take those understandings seriously. If the Constitution was originally understood to operate against a backdrop of natural law, then it must still operate against that backdrop today. That argument might once have made Arkes an outlier.

But today, there is a growing consensus that the Constitution incorporates unwritten norms embedded in the Western legal tradition. Those norms include natural law and the common law, which itself drew on natural-rights and social-contract philosophy. Even strict originalist and textualist scholars have gravitated toward this view. They agree that the Constitution, as it was originally understood and as it exists today, imported some basic tenets of natural law.

That conclusion has profound implications for many substantive fields of law, none more so than labor law. Among the rights most closely guarded by natural law was the right to work. That right was seen as a type of property right?in fact, it was the most fundamental property right. It was the source of all property, and thus all other rights. It was also closely linked to the common law’s hostility toward monopoly power. Government-bestowed monopolies were seen as antithetical to the right to work because they excluded people from their chosen professions. They were disfavored and often declared invalid as against natural right and reason. Yet modern labor law is built around just such a monopoly.

Today, section 9(a) of the National Labor Relations Act gives a union the exclusive right to represent employees within a bargaining unit. It has also been interpreted to deny individual employees the right to bargain for themselves. That interpretation effectively turns modern unions into government-backed monopolies. It allows unions to control all bargaining within a defined labor market and to exclude all competitors. And in that way, it interferes with the employees’ right to pursue their chosen calling on their own terms. That result, however, is not inevitable. Courts once interpreted section 9(a) to allow individual employees to bargain for themselves. And the basis for that interpretation is still in the statutory text. Should courts revive natural-law principles, which seems increasingly likely, they could return to that approach. They could revert to the earlier meaning of the statute?a meaning that would better respect the natural right to work. The statute need not be amended, revised, or struck down. It could simply be refurbished and made more consistent with fundamental background norms.

In this lecture, our speaker, Alex MacDonald, will explore these issues in detail. Alex will touch on the historical roots of the right to work, the right’s connection with natural-law principles, and its return to modern jurisprudence. He will also examine how that return could transform modern labor law, especially the concept of exclusive representation. The lecture builds upon Alex’s recent article of the same title, published in the North Dakota Law Review. Participation, questions, and debate are invited and welcome.