How about the right to unionize?

The libertarian paradise of 1880 was lacking some important liberties.

There’s an amusing, and instructive, kerfuffle going on in libertarian blogistan. David Boaz started it with a devastating critique of the “lost Golden Age of liberty” trope, pointing out that Framer-worship means, in effect, admiring a society that embraced slavery and offered little in the way of personal liberty to women.

Jacob Hornberger replied, rolling the Golden Age forward into the post-slavery period:

Let’s consider, say, the year 1880. Here was a society in which people were free to keep everything they earned, because there was no income tax. They were also free to decide what to do with their own money—spend it, save it, invest it, donate it, or whatever. People were generally free to engage in occupations and professions without a license or permit. There were few federal economic regulations and regulatory agencies. No Social Security, Medicare, Medicaid, welfare, bailouts, or so-called stimulus plans. No IRS. No Departments of Education, Energy, Agriculture, Commerce, and Labor. No EPA and OSHA. No Federal Reserve. No drug laws. Few systems of public schooling. No immigration controls. No federal minimum-wage laws or price controls. A monetary system based on gold and silver coins rather than paper money. No slavery. No CIA. No FBI. No torture or cruel or unusual punishments. No renditions. No overseas military empire. No military-industrial complex.

As a libertarian, as far as I’m concerned, that’s a society that is pretty darned golden.

[Don’t you love “Few systems of public schooling” as an object of nostalgia? No doubt poor children are happier growing up ignorant.]

Hornberger admits 1880 wasn’t quite perfect; there were, he says,

other exceptions and infringements on freedom, such as tariffs and denying women the right to vote.

[Because, of course, raising revenue by taxing imports rather than by capitation is as grave an insult to liberty as denying the franchise to half the population.]

Will Wilkinson comes back at Hornberger:

Nope. Sorry.

How about the female half of the population? By 1880 coverture laws, which basically denied married women any meaningful property rights, were still in place in many states. (Coverture laws persisted in some states until the 1920s.) And there were plenty of further paternalistic regulations on the sort of work women were allowed to undertake. Of course, women in 1880 had almost no meaningful rights to political participation, ensuring that they were unable to demand recognition and protection of their basic liberty rights through the political system.

Slavery was gone in 1880, but systematic state-enforced racial apartheid was going strong. The economic and political rights of blacks were severely curtailed under the various antebellum state Black Codes and then under the Jim Crow laws. What formal rights Southern blacks did have were often denied in fact by extralegal enforcement of racist norms by lynch mobs and other campaigns of terror.

By 1880, most of the the U.S.’s imperialist efforts to secure North American territory against the claims of competing European imperial powers were complete. But the government’s campaign of murder, theft, and segregation against native populations continued.

One could go on and on in this vein in gruesome detail. But this is enough to establish the point: 1880’s America was a society in which well more than half the population was systematically and often brutally denied basic liberty rights. If that’s golden, I’d hate to see bronze.

Right. The main occupation of the U.S. Army between the end of the Civil War and the beginning of the Spanish-American war was “Indian fighting,” or, as we call it today, “ethnic cleansing.” Of course Wilkinson blames it all on “the government,” as if much of the work hadn’t been done by free individuals exercising their right to keep and bear arms in defense of the private property they were engaged in stealing.

But even if we look only at heterosexual males of European descent, and even if we agree to treasure such rights as the right to grow up without schooling and to be free of employment discrimination against eight-year-olds, the right to consume adulterated food and drugs, and the right to starve to death if incapacitated from earning a living by misfortune, disease, or old age, in one respect the 1880s were much less free than, say, the 1950s. In 1880 any attempt to form a labor union was treated by the courts as a criminal conspiracy. It was also likely to be met with extra-legal violence by the Pinkertons (and sometimes the national guard). Today, however, the right of workers to organize is an internationally-recognized human right (except in El Salvador and Libertarianland).

In practice, the right to unionize has been under siege from union-busing consultants, aided by capital mobility and a complaisant NLRB. But even post-Reagan, American workers remain free, in principle, to try to bargain collectively with their employers. This is not, of course, a right that libertarians cherish; Brink Lindsey lists the collapse of private-sector unions as a gain for liberty. But the utter helplessness of a railway worker, textile operator, or coal miner of the 1880s (who enjoyed, thanks the the “fellow sevant” doctrine, the right to be injured at work without receiving compensation) in the face of the tyranny of the boss and the foreman is not a condition to which all of us aspire to return.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

27 thoughts on “How about the right to unionize?”

  1. I think a fair test is to ask Hornberger whether he would be willing to trade places with a randomly chosen American of 1880. Who knows? He might be a Vanderbilt heir, able to enjoy all that wondrous freedom. Or maybe a black sharecropper in Mississippi.

    Golden Age? What utter idiocy.

  2. To my mind there is a much larger issue that Hornberger leaves out in his adoration of the 1880s. Incorporation is not some natural state of affairs, but rather a service created by government. It is in effect an insurance policy against investment loss that is operated by the government. That it is an enormously valuable service as well can hardly be doubted. So Hornberger's list of freedoms amount to the freedom of using this service (along with others provided by government, such as security itself) without having to pay for it. It is not some principled stand for liberty but rather a call for hand-outs.

    And just to be clear, I am not calling for an end to such services, rather I think we should provide them, and charge money for them.

  3. The other libertarian paradise was of course Britain in 1845, which worked out so well for the Irish.

  4. The right to organize in unions is a real right. It's part of freedom of association. The right not to be compelled to join a union is also a real right. An aspect of that very same right of freedom of association. Is there any good reason why agreeing with the first obligates you to deny the second, or caring about the second must be construed as opposing the first?

  5. Let's not forget those free individuals in significant portions of Africa. "Freedom's just another word for nothing left to lose" probably means more to them than it does to any remaining hippies.

  6. Brett,

    I agree. Nobody should be compelled to join a union.

    If it happens that it is hard to find a job in one's chosen field without joining a union, nobody is forced to join.

    If it happens that it is hard to find a job without a telephone, nobody has to buy service from Verizon.

  7. Brett, when has the government ever compelled anyone to join a union? If you are talking about the right of a firm to hire exclusively from a pool of union members, or to insist upon union membership as a condition of employment, that's all part and parcel of that right of free association you were talking about. That the firm may have adopted such hiring criteria following bargaining en masse from unionized workers has no bearing whatsoever, all of those decisions take place entirely within the private sector.

  8. "Brett, when has the government ever compelled anyone to join a union?"

    You're kidding, right? How about public employees where there's a union shop? For that matter, are you really saying you want employers to be able to ignore the results of union certification elections? I'm surprised, but gratified…

  9. Butbut…never mind rights, in the 1880s, people were much poorer than they are now, and didn't live as long. Does anyone propose we could have current levels of wealth with a libertarian-scale government…if capital markets worked perfectly, private education (purchased with loans) from K through graduate degrees would be optimized to the labor force needs of two and three decades hence, including just the right numbers of car mechanics, nurses, and physicists? Give me a break; at the core of a lot of libertarian nonsense is a simple refusal to admit the existence of market failures, or the fact that they are technical properties of goods, not ideological decisions.

  10. Brett, I'm not juvenile enough to be a libertarian, so I'm fine with the NLRB process as it is. But what I was arguing is that there is no compulsion involved *whatsoever* in the requirement that you have to belong to a union to be eligible for a certain job, even if collective bargaining brought about that job requirement, and even if that job is with the government. Compulsion means the penalty for not obeying is that you lose something that is yours, like your property or your freedom or your life. But a job isn't one's property; funny I have to explain this to a libertarian.

  11. But there IS compulsion on the part of government towards employers, to force them to accept, and force upon anyone they hire, the results of certification elections. And you're fine with that, sure. I'm not disputing that, I regard it as further evidence that 'liberals' have very little regard for liberty.

  12. Brett fails to notice that unions are just another form of cooperation (lose the 'o', if you like).

    Nobody makes people join unions. Government, on the other hand, has a history of union busting. (No, I'm not forgetting that unions have a history of sometimes resorting to violence.)

  13. Why not hark back to pre-Colonial North America? Men spent all day hunting and fishing and spent all night making love. Women did the work. Then the Europeans came along and decided they could improve on that. :^)

  14. 1880? I can kind of understand why this would be a libertarian dream. You'd be free to drink tainted water, free to pay the railroad trusts enormous fees for transportation, free to have your elections bought and paid for, free finally, to live in a society of "tramps and millionaires".

  15. Brett, I was only responding to a specific argument of yours, to wit:

    The right not to be compelled to join a union is also a real right.

    which isn't true even in the narrow and stunted libertarian conception of freedom (or precisely, it isn't compulsion in the sense libertarians generally use the word if one is required to join a labor union to be eligible for a certain job). You are certainly correct in that I care little for that libertarian conception of liberty, as I regard the right to be seated at a restaurant without regard to my race, or the right not to be blacklisted for registering as a Democrat or a Republican, or failing to belong to a church, as liberties every bit as much as the right not to ride a motorcycle without wearing a helmet.

  16. IIRC, the Libertarian Party has in the past opposed right-to-work as an infringement on employers' freedom to associate with unions. On this view, if an employer chooses to hire only through a union, & workers can gain employment with that employer only by joining the union, workers aren't compelled to join the union. They're free not to accept the employer's offer. I don't know if this bears on Brett's comment.

  17. K, that's exactly the point I was trying to make, though it's worth noting that few on the right (apparently including Brett) bother with that kind of consistency. Usually whatever corporations and the wealthy want, the right wants.

  18. The real problem here is that libertarians can continue to pretend that if only their perfect utopia were enacted all these pesky details will be irrelevant. And until they get a modern libertarian state that turns out to be horrific (as when progressives got communism), they'll continue to blow sunshine.

  19. In 1880 any attempt to form a labor union was treated by the courts as a criminal conspiracy. It was also likely to be met with extra-legal violence by the Pinkertons (and sometimes the national guard). Today, however, the right of workers to organize is an internationally-recognized human right (except in El Salvador and Libertarianland).

    Oh, yes – just read up on the history of coal mining and the unions in the late 19th century/early twentieth century. That was "labor conflict", complete with National Guard and Pinkerton massacres, strikers bombing company offices and the like, and overall violence and conflict.

  20. How about public employees where there’s a union shop?

    Huh? Can you PLEASE provide an actual example of this? I work for the Social Security Administration. I made a completely voluntary decision to join the American Federation of Government Employees within a few months of being hired. I was NEVER pressured into joining. There are people at the office who have been working for SSA for 20 years or more who have never been a part of the union. Just a few weeks ago we had some union reps at the office talking to employees during their lunch. They were dressed casually and had a casual demeanor. They were there to speak about the union if one were interested and to hand out promotional materials. If you wanted to join, that's fine. If you weren't interested in joining and would rather not be bothered by them, that's fine too. No pressure. In fact, Government employees are the ONLY employees that are prohibited by federal law from striking. To be honest, I'm not sure if this extends to State and Local employees. I can only speak for Federal. I just thought I could actually provide a little insight into this discussion.

  21. In the early 1970s, I was running with a woman who had a master's degree or a PhD in Urban Geography. She had been working on a study for the Denver School Boards to discover ways to persuade high school drop outs to stay in school.

    When the report was delivered, the board tossed it in the trash. The discovery that the measurable components of surveys on general satisfaction with their lives, their accomplishments in life and their expectation of the future being better were totally inversely related. The post PhD educated had the lowest life satisfaction, the totally illiterate had the highest satisfaction with their lives.

  22. "The real problem here is that libertarians can continue to pretend that if only their perfect utopia were enacted all these pesky details will be irrelevant."

    Anyone who thinks that there could be any such thing as a libertarian utopia can't be a libertarian. There are no utopias. Libertarian or otherwise.

  23. Could we please make a rule that "[sic]" is to be added following every use of the term "extra-legal?" I believe this will be helpful for readers to understand that the author is merely too polite, or disingenuous, to call an action or behavior by a group or an individual as being actually "illegal." Thank you.

  24. Libertarian nostalgia converges, by accident or design, with the broader rightwing attack on twentieth-century America. It provides ideological ballast for, e.g., Glenn Beck (he features Cato staffers on his show), whose main theme is that evil forces have dominated the US for more than a century. More generally, a large share of the work of rightwing ideologists is devoted to providing some sort of semi-rational veneer for the irrational beliefs & baser impulses of the larger movement.

  25. Brett, I was only responding to a specific argument of yours, to wit:

    The right not to be compelled to join a union is also a real right.

    which isn't true even in the narrow and stunted libertarian conception of freedom (or precisely, it isn't compulsion in the sense libertarians generally use the word if one is required to join a labor union to be eligible for a certain job). You are certainly correct in that I care little for that libertarian conception of liberty, as I regard the right to be seated at a restaurant without regard to my race, or the right not to be blacklisted for registering as a Democrat or a Republican, or failing to belong to a church, as liberties every bit as much as the right not to ride a motorcycle without wearing a helmet.

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