The Lochner-Era Roots of the Conservative First Amendment

by Sophia Z. Lee, Professor of Law & History, University of Pennsylvania Law School

“Right to work” is dominating the news, making headway in union strongholds and finding sympathy on the Supreme Court.  Yet the concept of a legal “right to work” harkens back to the early Twentieth Century when this and other substantive due process doctrines were used to strike down Progressive labor laws.  The New Deal Court supposedly laid to rest this “Lochner era” (thus named for an emblematic 1905 decision holding that a New York maximum-hours law violated workers’ and employers’ freedom of contract).  So how have right-to-work proponents managed to rally successfully behind such an anachronistic term?

The Workplace Constitution from the New Deal to the New Right provides the first legal history of the right-to-work campaign.  As it demonstrates – right-to-work strategists’ Lochner-era moniker notwithstanding – these savvy and forward-looking activists quickly replaced their substantive due process claims with ones based on the First Amendment.  In the process, they forged a modern conservative civil rights campaign that grew up alongside its liberal counterparts.

The conservative activists who fought the union power unleashed by the New Deal had sturdy Lochner-era roots.  Even before the New Deal, employers had moderated their open-shop activism, insisting that they were anti-closed shops, not anti-union.  When activists first gathered under the right-to-work banner in the early 1940s, their argument that no one should have to join or support a union to keep a job was in keeping with that Lochner-era position.  In 1944, Hollywood mogul Cecil B. DeMille brought the first right-to-work lawsuit over a one dollar assessment levied by his union.  DeMille’s suit likewise relied on Lochner-era substantive due process claims and precedent.

But right-to-work activists quickly updated their legal claims to fit the emerging civil rights and civil liberties regime.  Even DeMille’s suit reflected this change: On appeal, DeMille’s lawyers added First Amendment forced speech claims based on the 1943 Supreme Court decision West Virginia Board of Education v. Barnette, which found that public schools could not compel students to salute the flag.

In the 1950s, right-to-work advocates pursued a coordinated litigation campaign akin to the NAACP’s challenge to public school segregation.  When their cases reached the Supreme Court in the 1950s and ‘60s, First Amendment forced speech and association claims, along with post-New Deal precedents, predominated.  Over succeeding decades, right-to-work advocates eliminated substantive due process claims from even the margins of their lawsuits.  The constitutionality of union security agreements comes before the Supreme Court today strictly as a First Amendment issue.

Right-to-work activists’ rhetoric underwent a similar transformation.  DeMille used the many public pulpits at his disposal to spread his right-to-work message.  Initially, he described a majority of workers set upon by a corrupt or Communist union minority.  Soon, however, he repositioned himself and his sympathizers as a minority of dissenting workers using the Constitution to protect themselves from “the battering ram” of the union majority.  This minority rights claim became a staple of right-to-work advocacy.

By the late 1940s, DeMille and his allies also called themselves civil rights champions.  Initially, right-to-work advocates, many of whom were segregationists, argued that their civil rights campaign was more important than African Americans’ fight against racial discrimination.  But in the 1950s, ‘60s, and ‘70s, right-to-work activists instead allied their efforts with liberal civil rights fights.  They sought out African American and female plaintiffs, accused the labor laws of empowering discriminatory unions, included antidiscrimination provisions in proposed right-to-work laws, and helped employers use charges of union discrimination to resist organizing campaigns.  Supporters today likewise describe the right to work as “a basic civil right” and tout its benefits for black workers.

It’s hard to imagine now, but the late 1950s were a rough period for right-to-work proponents.  They had lost before the United States Supreme Court, and voters had shot down all but one of their state ballot initiatives.  Grasping for a new way forward, they considered changing their rallying cry to the “freedom of association.”  Had they done so, today’s headlines would likely proclaim new freedom-of-association laws in states such as Wisconsin.

Those headlines would be both more and less accurate than the media’s actual announcements of the latest “right-to-work” laws.  They would be more accurate because right-to-work litigators have emphasized First Amendment claims since the 1940s.  But they would be less accurate because they would mask the roots of today’s right-to-work battles in Lochner-era open-shop advocacy.  As The Workplace Constitution shows, the disconnect between the substance of right-to-work advocates’ claims and their rallying cry is a useful reminder that the New Deal had no sooner interred Lochner-era substantive due process than conservatives began remaking the First Amendment in its image.