Originalism: Labor’s Shield?

Harry Beck took an understudied working-class path through the tumultuous 1960s. After high school, he worked for the local telephone company and happily joined the Communications Workers of America. Over time, he became critical of his union, eventually quitting the Communication Workers, joining the right-to-work movement, and spending the next two decades fighting his former union from the outside.

In 1979, with the help of the National Right to Work Legal Defense Foundation, Beck won a federal court ruling that the Communication Workers violated his First Amendment rights by requiring him to pay union fees beyond those “allocable to collective bargaining, contract administration and grievance adjustment.” Union officials were “certain to appeal . . .  what they consider a ‘must win’ case,” Foundation lawyers warned, but Beck had reason to be optimistic.

In 1980, Ronald Reagan was elected President with the support of the right-to-work movement, an influential element of the New Right coalition. Reagan threw right-to-work activists’ political bones, appointed conservatives to the Supreme Court, and committed his Justice Department to a constitutional revolution. After decades of litigating, the right-to-work movement seemed poised to achieve its decades-old goal: a Supreme Court decision “upholding the [constitutional] right of citizens to earn a living without paying money to a union.”

Instead, Reagan’s constitutional revolution hurt rather than helped Beck and his right-to-work allies. The Reagan administration is generally seen as a triumph for conservatives, particularly for their constitutional agenda. That the Reagan revolution created winners and losers among conservative constitutionalists is less recognized. Originalism, conservatives’ alternative to liberal constitutionalism, rejected the legitimacy of the Court’s postwar rights jurisprudence. Having built their right-to-work claims out of civil rights activists’ Supreme Court wins, the right-to-work movement found its claims exiled from the conservative revolution it helped spur.