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2017 U. Chi. Legal F. 513 (2017)
The Right to Work and the Right to Strike

handle is hein.journals/uchclf2017 and id is 519 raw text is: The Right to Work and the Right to Strike Laura Weinribt This term, the Supreme Court will consider Janus v. AFSCME, the newest installment in an antilabor campaign on behalf of a constitu- tionally protected right to work.' Drawing on recent business-friendly First Amendment decisions, opponents of organized labor contend that fair-share agency fee agreements, which require non-members of a union to pay their proportionate share of collective bargaining and con- tract administration expenses, can no longer weather constitutional scrutiny.2 These advocates argue that the extent to which employees within a bargaining unit are required to contribute to the costs incurred on their behalf by a labor organization designated to represent them should be deferred neither to agreements between unions and employ- ers nor to the legislative process. Rather, they urge the Court to prohibit any such payment as a matter of constitutional law. Whatever their policy preferences, commentators have regarded the new judicial openness to economically inflected free expression claims of the kind proposed in Janus v. AFSCME as a departure from, or at least a significant extension of, traditional First Amendment prin- ciples.3 By contrast, this essay demonstrates that advocates articulated related arguments as early as the 1930s, when the modern First Amendment took shape. Moreover, although they did not yet prevail in court, such arguments helped to garner broad-based support for the Su- preme Court's speech-protective turn at a time when liberals and labor groups were deeply suspicious of court-centered constitutionalism.4 Yet to the extent they were credited at all, antiunion First Amendment t Professor of Law at the University of Chicago Law School. I thank Kate Andrias, Alex Gourevitch, and Sophia Lee for helpful comments. The essay benefited from a rich discussion with participants at The University of Chicago Legal Forum Symposium. I am grateful for support from the Karl R. Janitzky Memorial Fund. ' On the history of the term right to work and contestation over its meaning, see SOPHIA Z. LEE, THE WORKPLACE CONSTITUTION FROM THE NEW DEAL TO THE NEW RIGHT 60 (2014). 2 See, e.g., Harris v. Quinn, 134 S. Ct. 2618, 2626 (2014). For an overview of recent developments involving labor law and the First Amendment, see infra Part I. 4 Labor and liberal antipathy toward judicial review is discussed in Part II. 513

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