Back in 1857 the US Supreme Court, in response to the lawsuit of one Dred Scott, a slave suing for his freedom, ruled that nobody of African descent had any legal right under the US Constitution that any white man was bound to respect. It was a bright line that was only resolved, insofar as it was, by the Civil War.
In the next few weeks the US Supreme Court is expected to hand down what amounts to a 21st century Dred Scott decision. The case is National Labor Relations Board vs Murphy Oil USA. The universally expected ruling of the court will be that no workers on any job possess any legal right whatsoever to collude or combine against their employers for any purpose, period exclamation point.
There are details and fine points as there always are with the law, but that’s the gist of it. What there isn’t, is any shadow or prospect of relief anyplace in the US Constitution. The 19th century Dred Scott Supreme Court said black people had no Constitutional rights, and its 21st century counterpart says pretty much the same for workers on the job not already represented by a union, a mere five or six percent of the US workforce.
Employers went into this case claiming no worker on any job possessed any right to sue or take any sort of collective action at all against an employer, that any rights workers might have were strictly limited to individual “arbitration,” their appropriate name for arbitrary kangaroo courts set up by offending employers themselves. No rights means no rights. None. No letters, no phone calls, no public or private meetings, conversations, web sites, no joint activity of any kind. None of this, the court is expected to rule, is or may be protected by any law under the US Constitution.
In the spirit of activist judges making the law from the bench, this will pretty much erase the jurisdiction of the National Labor Relations Board which since the 1930s has specifically recognized a right of workers to collectively address and seek redress from employers. But no more. That’s about to be over.
This is not something we can blame on Donald Trump or his Supreme Court either. Candidate Barack Obama said he’d back laws to make it easier for people to fight for union rights on the job, that he’d even walk a picket line while president if the right to organize was threatened. He lied. The first black president came, he saw, and he did something else entirely. Federal judges on the other hand are not elected, and therefore don’t have to lie about such things. The federal bench has been almost uniformly hostile to the rights of workers almost since anybody can remember, and there is nothing whatsoever in the US Constitution that the working class can hang its hat on. Law is nothing if not class rule, and employers ARE the ruling class.
A separate ruling this year will restrict the ability of unions to collect dues from unwilling members, rendering them far less able to donate to Democratic party causes and candidates. The Dems and their candidates will as time goes on, become even more dependent on Big Pharma, Big Ag, Big Energy, Big Real Estate, military contractors and the same gang that funds the Republican party. What it means to the left is still undetermined. To collect dues at all, many unions will be forced to actually talk to their members on a regular basis, to give them a reason to kick in. So unions that actually do their jobs will survive.
The 19th century’s Dred Scott decision meant that those who would see their own rights or those of their black neighbors upheld had to grow a pair and step outside the nominal “protection” of the law. The US left, if there is such a thing is about to enter a similar place. Employers of every kind will be entitled to persecute and prosecute workers for accessing a web site, for signing a petition or letter, for attending a meeting or taking part in conversations about collective uplift. Those activities will be by definition outside the law.
What the left will do in this brave new world where collective action against employers is outside the law is uncertain, but it will certainly provoke a crisis on the black left, if there is such a thing. Again, for as long as anybody can remember, the entire conversation about black uplift has been monopolized by the individual success stories of the Oprah Winfreys and Junior Bridegmans and Magic Johnsons, not ordinary people, even though unions have been the only successful strategy for mass uplift. When the world around us changes, one hopes that the black conversation would change too. Otherwise it will become irrelevant in the era of the 21st century’s Dred Scott, where workers have no collective rights employers are bound to respect..
For Black Agenda Report this is Bruce Dixon. Find us on the web at www.blackagendareport.com and on SoundCloud at Black Agenda Radio, and Black Agenda Radio commentaries, and be sure to hit the donate button on our page, so that Black Agenda Report can keep doing what it does.
Bruce A. Dixon is managing editor at Black Agenda Report and serves on the state committee of the GA Green Party. He lives and works near Marietta Ga and canb be reached at bruce.dixon(at)blackagendareport.com.