Liberty and Labor: The Case of Janus

Last week I joined a team of graduate students, lecturers, and librarians who fanned out across the UC Berkeley campus to recruit new members into our union UC AFT 1474. Why the urgency?

It is not secret that trade unions — sometimes also called “bargaining units” — have retreated, quite dramatically, from the American landscape.

Because this Summer the Supreme Court will rule that lecturers and librarians who benefit from our union’s contract negotiations on their behalf will no longer be obligated to bear their fair share of the cost the union shoulders negotiating our contract. Four decades ago, in 1977, the Supreme Court held (unanimously) that public employees who benefited from contract negotiations had to pay a “fair share” fee to the public employees’ union, even if they did not want to join the union. Those fees, in turn, are separated from union dues and reserved strictly for bargaining. This Summer all of that will end. And negotiators will have to depend on compensation paid solely out of the dues of union members. “Fee payers” will disappear as a category.

The case where all of this will be decided is called Janus v AFSCME. “Janus,” a fee-payer to AFSCME will argue that union membership is political speech and that to obligate him to contribute a fee to the union amounts to coerced political speech, which is prohibited by the constitution.

But it occurs to me that we have visited this case before, in 1787. There the issue was the status of slaves: where slaves private property or were they human beings with full rights, obligations, and privileges of their own? The names have changed, but the issue is the same.

Northern delegates, such as Rufus King of New York, were clear. If slaves were property, then they should be regarded the same way as a boat or building or plot of land — valued and taxed accordingly; if they were full human beings (not property), then they should be freed and accorded all of the rights and liberties enjoyed by any other human being in a republic.

The southern delegates equivocated. Slaves were most definitely private property. But — and this is where things got messy — slaves also made up the lion’s share of the population in the south; which meant that, insofar as the number of members in the lower house for each state were tied to the population of adults in that state, southern states would be underrepresented; unless, of course, we conclude that property, real wealth, enjoys full voting rights. To which our good delegate from New York replied: well, then will my property, my boats, my real estate, my assets also enjoy a vote? Good question Rufus.

The debate ended in the devil’s bargain of the 3/5ths clause, without which, in all likelihood, the southern states would not have elected to join the republic. The 3/5ths clause, rightfully, is often presented as an instance of institutional racism, an original sin of sorts, in the formation of the United States.

But, let me suggest that this sin is not entirely understood and is not entirely about race. It is, in fact, about money. Lots of money. For southern land owners race=money=race. Their marginal returns, head and shoulders above the returns commanded by cultivators elsewhere in the world, were wholly dependent on slaves. Take away their slaves and their marginal returns take a deep dive. Maintain them, increase them: these returns meant the leisure and wealth to maintain the “southern way of life.” Nice.

But, of course, it was the stated intention of folks like Rufus King of New York to deprive southern land owners of their property and thus their wealth. And, given their overwhelming advantage in white adults (who were the property of no one), northerners could and probably would have eliminated slavery, if not in 1787, then soon thereafter. Because they had the economic interest and the votes to do so.

Not only therefore did the 3/5ths clause prevent white northerners from overpowering white southerners in the House; it also offered a moral hazard because the greater the number of black slaves, relative to whites, the greater their representation in the House, but also the greater their economic power: the House of Cotton ruled the day.

But, let us suppose for a moment that, legally, slaves are money; they are property. What does it mean for me to give private property a vote in the House? We could say, of course, that the only vote ever cast in the House was the vote of wealth, of money, of capital. But here, in the form of African American men and women, we are saying: this property has a vote, not as a human being, but precisely as property, as money, as capital, as wealth.

1864 and 1865 did away with this conceit, but not the underlying cause.

When, in 1935, the Wagner Act made collective bargaining the law of the land, it declared that workers were also citizens and not simply the property of their employers. They could speak and they could assemble without fearing the retribution of their “owners.” Taft-Hartley, in 1947, of course greatly weakened their rights. Janus will completely eliminate them.

Speech, wealth, and power have been tied together in the US since the very beginning. The 3/5ths clause illustrates only how closely the three are tied. Janus, as a Plaintiff, is being bankrolled by the heirs to the southern plantation owners, the anti-Federalists, the confederates who always hated republican values and institutions: because they threatened their private property, their slaves.

“Slave,” in Greek is δοῦλος. It is the same word used to describe someone who works in another person’s private household, their private enterprise. Liberty, as the framers of the US Constitution understood it, entailed working in one’s own private enterprise. When the Supreme Court rules in favor of Janus it will, in effect, deprive millions of workers their liberty, their ownership of their own bodies. It will transform them into δοῦλος. From that point forward, workers will be subject to the owners of the private enterprise in which they work, without the right to bargain with their employers on a level playing field.

Only now, instead of the 3/5ths clause applying to Africans, it will apply to all workers. All workers will, in effect, become the property of their employers.

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