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  • The Workplace Constitution from the New Deal to the New Right by Sophia Z. Lee
  • Charles Romney
Sophia Z. Lee. The Workplace Constitution from the New Deal to the New Right. New York: Cambridge University Press, 2014. 401 pp. ISBN 978-1-107-03872-1, $29.99 (cloth).

Sophia Lee's excellent book, The Workplace Constitution, explores competing attempts to establish constitutional rights for employees in the United States from the 1930s to the 1980s. Lee uses extensive archival research and clear explication of legal doctrine to tell the story of two movements that many scholars might place in different categories. The first movement comprised workers, union organizers, and activist lawyers who sought to expand civil rights for employees who faced discrimination from both companies and labor organizations. These liberals, as Lee labels them, often disagreed on legal strategy and frequently worked against each other. In Lee's story the proponents of racial equality in the workplace range from Charles Hamilton Houston of the NAACP to Howard Glickstein of the Justice Department. The second movement included some workers, employers, and entertainment figures who supported right to work measures that allowed employees to opt out of union dues and union activities. In Lee's account, the right to work activists range from Cecil B. DeMille, the filmmaker, to Sylvester Petro, a lawyer for the National Right to Work Legal Foundation. These conservatives, as Lee describes them, also divided over legal doctrine and often found themselves opposing people who had similar political goals. Lee's careful reconstruction of the twists and turns of these two seemingly disparate groups shows how the liberals and the conservatives ended up, at times, on the same side of a legal case.

Lee explains that the same constitutional concept that internally divided conservatives and liberals also brought together elements of both sides in unlikely alliances: the state action doctrine. Since many believed that the Constitution only protected the rights of people subject to government action, some civil rights proponents and right to work supporters made legal claims to bring the activities of companies and unions within the legal definition of state action. Some civil rights activists believed that union racial discrimination fell within the realm of state activity, while right to work lawyers claimed that [End Page 273] the same doctrine protected individual employees from paying compulsory fees to labor organizations that those employees might not support. At times both liberals and conservatives remained internally united on expanding the reach of the courts and the state into the workplace, but within both camps—those supporting civil rights and those advocating a right to work—the concept of state action also divided political allies. In the 1980s, for example, Lee explains that William Rehnquist and other conservatives had a prior commitment to judicial restraint that put them on the other side of the legal argument vigorously made by their possible allies within the right to work movement. Lee's exploration of the influence of this legal idea leads her to make two additional points. First, Lee shows that much of the legal battle over employee rights took place within administrative agencies as well as in the courts. Second, Lee demonstrates how political movements faced constraints in what they might argue from legal precedent and existing (if temporary) judicial consensus on the reach of the government. Interpretations of the state action doctrine inside administrative agencies shaped the fight over constitutional rights in the workplace.

Lee's thoughtful evaluation of archival evidence and legal argument unearths several key moments in the fight over constitutional rights in the workplace that took place within administrative agencies. In Lee's second chapter, for example, she explores an early 1940s National Labor Relations Board case involving a segregated tobacco packing plant in Richmond, Virginia, that also had separate AFL locals for African-American and white employees. Lawyers for both a CIO union and the NAACP urged the labor board to rule against the division of workers by race. Yet those lawyers did not make a constitutional claim. Even though neither legal brief mentioned a constitutional basis to rule against against segregation, the labor agency's trial examiner, Frank Bloom, recommended to the...

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