Is There A Right To Work?
Back in the 1950s and 1960s, one of the most popular phrases among conservative Americans was “the right to work.” It was a code phrase for “anti-labor union laws.” This was recognized by both friends and foes of trade unionism. Labor union executive Gus Tyler wrote in 1967: “In almost every case, such laws are intended to bridle unbridled unions.”1
From the point of view of political persuasion through rhetoric, the phrase was a success. By 1956, 18 states had passed right-to-work laws. Only one—Louisiana—had voted to repeal.2 But over the next decade, the right-to-work movement stalled. In 1968, a total of 19 states had such laws.3 But in 1968, the labor union movement in the United States peaked. The move from manufacturing to services, and the greater growth of new business formation in right-to-work-law states, have driven down the percentage of workers who belong to unions from 23 percent in 19684 to 16 percent in 1993,5 and a high percentage of these are government white-collar employees.
One problem with a catchy phrase, especially one adopted in the service of a good cause, is that it will be believed as a stand-alone statement. People will accept it, as we say, on face value. This was a problem with “the right to work” from the beginning. The phrase was powerful because it announced what seemed to be a high moral principle. That was the intention of its promoters, who recognized that it is easier to promote a cause when that cause appears to be positioned on high moral ground.
The problem is, the phrase produced a great deal of confusion in the minds of those who employed it as a political weapon. Coming in the name of what they perceived as a higher morality, they announced a principle that, if taken literally, would undermine the moral foundation of the free market economy which they sought to defend. This is always the risk of political slogans. In their very effectiveness in changing people’s minds or reinforcing opinions, they produce unintended consequences that run counter to the goals of their promoters.
For over a century, there have been two rival applications of the phrase. It was coined by the French utopian socialist, Charles Fourier, in 1808. The slogan became popular among trade union organizers in the nineteenth century. For the socialists, the phrase meant the right to a job. Horace Greeley, the American newspaper owner and disciple of Fourier, in 1846 called for the “right to Labor—that is, to constant Employment with a just and full Recompense. . . .”6 Eugene V. Debs, the early twentieth-century American labor-union organizer, insisted: “Every man has an inalienable right to work.”7 This interpretation was common down to the early 1950s.
A rival view began as early as 1870. Critics of the unions called attention to the fact that by excluding some men from membership, unions removed the right to work from those excluded.8 This interpretation has become the dominant one in the United States since the early 1950s.
So, there has been confusion over the meaning of “work” or “labor.” This confusion still exists. But there has been another confusion: the meaning of the word “right.” This is the more fundamental confusion—and the more dangerous.
What Is a Right?
“I have my rights!” This announcement is a statement of principle. But what does it mean?
A right is a claim of judicial immunity. A person is granted—by someone—immunity from prosecution by the civil government whenever he commits certain specified acts. These acts are conventionally termed rights, but in fact it is the grant of immunity from prosecution which constitutes the right. Such a grant of immunity is a grant of privilege.
If this grant of privilege originates with civil government, then civil government may subsequently decide to revoke it. This threat was what motivated Thomas Jefferson to write his immortal words in the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
God, as the Creator, was identified the source of these rights, which the typesetter printed as “unalienable.” Jefferson’s original manuscript said “inalienable.” Either way, the meaning is clear: no one may lawfully surrender these rights. This is what “inalienable” means: not subject to transfer. This was an important assertion, given the influence in the eighteenth century of theories of social contract, which grounded all civil government in an ancient transfer of sovereignty from individuals to the civil government. Jefferson was arguing that whatever it was that men gave up in that original (hypothetical) transfer of sovereignty, certain rights were not transferred, for they are inalienable. The State is therefore not the source of these immunities. The Creator granted these immunities to all men, who cannot legally surrender them. The American Civil War to a great extent was the product of a moral and political debate over whether Jefferson’s theory of inalienable rights had any legal authority in American Constitutional law, and whether it should be applied to the institution of chattel slavery.
The State, not being the source of these rights, cannot lawfully infringe on them. But the British Parliament had so infringed, which is why Jefferson announced the right of the colonies to remove themselves from the jurisdiction of the British Crown. The State cannot revoke by law those rights—inalienable legal immunities—which the State has not initiated. A grant of privilege from God is therefore a grant of privilege against its infringement by the State.
What this argument pointed to was a hierarchy. A sovereign Creator God has established certain immunities from State action around men’s persons and lives. His sovereignty cannot lawfully be infringed on by other men or their political agents. Jefferson was arguing for the right of armed resistance by the colonial governments. Local units of civil government possessed the authority under God, and therefore the responsibility, to defend these immunities from encroachment by the more distant Parliament. These local governments had operated under the authority of the British government—specifically, the King. But because these local units of government were coming to the defense of men’s inalienable rights, Jefferson was arguing, they now occupied the moral high ground. They, not the British Parliament, were now judicially sovereign in the colonies. They were defending God’s grant of privilege, which took precedence over the British Parliament’s false claim of absolute sovereignty.
A similar perspective undergirded the first ten amendments to the U.S. Constitution, called the Bill of Rights. These amendments limited the actions of the federal government. That is, they placed judicial immunities from Federal interference around individuals and local state governments. But there was an important difference between the Bill of Rights and the Declaration of Independence. The Bill of Rights operated under the sovereignty of the People, who the Preamble to the Constitution identified as the source of sovereignty. The problem, judicially speaking, was that sovereignty had been transferred from the Declaration’s God the Creator to the Constitution’s collective We the People. The People can always change their minds through their representatives—as it has turned out, five sovereign judges on the U.S. Supreme Court.
The debate over men’s rights has been a debate over five related issues: (1) the sovereign source of specified rights; (2) the lawful representative agent in the defense of these rights; (3) the specification of any boundaries or limits on these rights; (4) the legitimate sanctions that can be imposed to defend these rights; (5) the appropriate application of these rights to specific cases in a changing world.
So, when a person announces, “I have my rights,” he is announcing his judicial immunity from civil action. The trouble is, he may believe he is announcing more than this.
When a man announces his right to work, what is he really asserting? Is he announcing that he has a legal immunity from the State to take raw materials belonging to him and shape them? If so, then he is announcing a crucial right, which we call a property right. The person who owns property has rights to use it in specific ways. This was the claim by the vineyard’s owner in Jesus’ parable of the wages: “Is it not lawful for me to do what I will with mine own?” (Matthew 20:15a).
A person who claims such a right is also implicitly announcing his right to property in his own person. He is saying that he can do what he wants with that which belongs to him. What belongs to him is his own labor. He is allowed to take his labor, his time, and his material goods and shape them as he pleases.
The example of the gardener is appropriate. He owns the land and the seeds. He plants the seeds, digs up the weeds, and does whatever else is biologically necessary to produce a crop. The crop may or may not grow. If it does, he can lawfully eat the crop, give the crop away, or let it sit in the earth and rot. His right to the crop means that the civil government has no legal claim to the fruits of his labor. Neither does his neighbor.
But can he sell the crop? Here is where the question of rights gets so confusing. When we ask, “Can he sell the crop?” we are asking two separate questions: (1) Can he lawfully offer the crop for sale? (2) Can he lawfully demand that someone else buy it? When people insist on their “right to sell,” they must be very clear in their own minds which interpretation they are putting on this phrase.
My Right to Say No
A man comes to me with an offer. Will I buy the output of his garden? I probably will ask a series of questions, such as whether he has harvested it yet, when did he harvest it, where has he kept the crop since he harvested it, will he deliver it to my door, and that most crucial of economic questions: at what price?
Inherent in the other man’s claim of a right to sell is my equally valid right to refuse to buy. There should be no compulsion on either side of the transaction.
What is spoken of as a right to sell or a right to buy must be carefully qualified. The right to buy, like the right to sell, is better understood as the right to make an offer. It is not that I have a right to buy or sell. What I have is a right to offer to buy or sell.
This may sound like quibbling over details. It is not quibbling; it is the heart of the matter. What the owner of an asset has a right to do is to make a bid to exchange it for some other asset. No one has any legal obligation to listen to his bid. No one has to accept it or reject it. No one has to allow the person into his home or office to make the bid. The sign on the outside of many businesses, “No Solicitors,” is a valid sign—as valid as the sign, “Help Wanted.”
Ironically, we sometimes see both signs at the same business establishment. Yet a person offering to sell his labor services surely is soliciting. He is asking for money in exchange for his labor. But business owners initiate the “Help Wanted” solicitation, so those who respond are not seen as solicitors. A solicitor is seen as someone from outside the business who initiates an offer to sell a service or product for money.
What of the sign that says, “We reserve the right to refuse service to anyone”? That used to be a legally posted sign in American businesses. A series of civil rights acts have made such signs illegal. By opening for business, the business owner loses his right to refuse a transaction at the posted price. The State has granted the buyer a right to buy—not the right to make an offer, but the right to complete the transaction. The seller is not allowed to place an exclusion clause on the offer: “Not available to the following types of people. . . .”
Similarly, recent legislation governing the “Help Wanted” sign has created a legal obligation for the employer to consider every applicant. The employer must be able to prove in court that he has not discriminated against some prospective job applicant on the basis of race, religion, sexual life style, or even intelligence. He can be sued under the law—many laws, in fact—for refusing to hire someone. He can be sued for giving a job to someone without advertising the existence of the job in a public place. “No Irish need apply” signs used to be seen in the windows of Boston businesses in 1850—and for all I know, in 1950. No longer is such a sign legal. The right to work has been extended to members of all groups.
This brings us back to the original question: Is there a right to work? That is, has a grant of immunity from prosecution been established by a higher authority? If so, what is this immunity?
The Employment Act of 1946
One of the results of what is known as the Keynesian revolution in economic thought is the widespread acceptance of the idea that a national government has the ability to create legal and economic conditions that will lead to full employment. “Full employment” is not actually defined as full employment, but something—unspecified—approaching full employment. Because the government supposedly can establish policies that will produce high employment, academics and politicians believe that it has a moral obligation to do so. In 1946, Congress passed and President Truman signed the Employment Act of 1946. This law is still in force. It directs the President of the United States to “promote maximum employment, production, and purchasing power.”
The defenders of the free market economy argued long before John Maynard Keynes that the civil government does possess the ability to create conditions favorable to the full employment of resources, including human labor. These conditions are explicitly judicial. They include the following: enforcing in the courts the terms of voluntary contracts and exchange, prosecuting fraud and violence, refusing to fix prices or the terms of exchange by law, keeping taxes low, and refusing to debase the monetary unit.
Keynes disagreed with these means but not the goal. He argued in 1936 that these judicial conditions do not always produce full employment. On the contrary, he said, they can and have led to permanent unemployment. He called for increased government spending during times of unemployment, spending above the revenues brought in by taxes, i.e., deficit spending. He called for an expansion of the money supply to clear the market of unsold goods, especially labor. In short, he called for the creation of the modern welfare-warfare State. So have most of the leading intellectuals and politicians since World War II.
The right to work is seen as an innate right for all mankind. This right is today defined as the right to receive a living wage. The Keynesian sees the worker’s right to be employed as central to the operation of the economy. When workers offer their labor services, there should be someone ready to hire them, Keynesians insist. If there is not, then there must be some defect in the operation of the economy. They insist that it is the State’s moral and legal responsibility to seek out the causes of unemployment. The free market has in some way failed; it must be made to work properly. “Working properly” is defined by the Keynesian as “providing employment for all those who seek employment.”
The right to work has been interpreted as a right to something, namely employment. It is seen as the right of the prospective employee to have his offer to work accepted by someone. The right to work is not seen as a prospective employee’s legal immunity from State coercion in making an offer to sell his services. It is surely not seen as the right of a prospective employer to refuse to accept this offer.
The Rights of Man: United Nations
The General Assembly of the United Nations Organization, better known as the UN, on December 10, 1948, passed the Universal Declaration of Human Rights. The preamble echoes the words of Jefferson—though not his typesetter—in asserting the existence of “inalienable rights of all members of the human family. . . .” Again, paraphrasing Jefferson, Article 3 announces: “Everyone has the right to life, liberty, and the security of person.” The document does not comment on the source of these inalienable rights, nor on the proper agency of enforcement, nor on the appropriate sanctions for the defense of these universal rights.
Article 23 is the important one for the purposes of this study. It has four sections. It invokes the right to work; then it explains what this right means.
1. Everyone has the right to work, to free choice of employment, to just and favorable conditions of work, and to protection against unemployment.
The right to work also implies the right not to work and still get paid. Article 24 announces: “Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.”9
We see here the traditional socialist application of the phrase. The right to work is understood as the right to a job, and not just a job: a job that provides an undefined but comfortable standard of living.
The Right to Exclude
In a world of scarce economic resources, exclusion is inevitable. In a world of scarcity, at zero price there is greater demand for some resources than supply of them. Someone must be therefore excluded from legal access to these scarce resources. More to the point, someone must be given the legal authority to exclude others from using a scarce resource. Exclusion is an inevitable concept. It is never a question of “exclusion vs. no exclusion.” It is always a question of who gets excluded by whom, on what terms, and enforced by whom.
First, if a worker’s contract has run out, and he decides to ask for more money or better working conditions from his employer, should he be subject to civil prosecution? Not if he has a right to make an offer to work.
Second, a presently unemployed worker seeks employment. Should he have the right to make an offer to an employer to exclude from employment a present worker who has no contract protecting him? That is, should he be allowed to make an offer to work, and thereby to exclude someone else, without threat of civil sanctions? If there is a right to offer to work, the answer is yes.
Third, does the employer have the right to refuse the offer without threat of civil prosecution? He does if the right to work is defined as the right to make an offer. The employer, in deciding which offer to reject, has the right to counter-offer, including the right to refuse to hire any workers at all.
The right to make an offer is inescapably the right to exclude. So is the right to refuse the offer. The worker—a seller of labor services in exchange for money—comes to an employer and says: “Hire me.” This means: “Do not hire some other worker in this position.” The would-be worker initiates an offer to the employer: “Exclude my competitor from this job.”
The employer—a seller of money in exchange for labor services—may choose to turn down the offer. He may hire another worker. Perhaps the second worker makes the employer an even better offer. The employer excludes the would-be worker who made the initial offer to exclude.
The right to work is the right to make an offer to exclude a competitor without threat of civil prosecution. This right does not protect the person making the offer from exclusion by the employer. It merely protects him from civil prosecution for making an offer to exclude.
The modern State has repeatedly adopted the socialists’ definition of the right to work. This was especially true prior to the 1950s in the United States, and is still the case in much of Western Europe. When applied to labor unions, this law recognizes the right of a group of workers to organize together and exclude other workers from making an offer to exclude. But this right is not merely immunity from State action; it is also a grant of privilege against economic retaliation by the employer. It is more than a right; it is a grant of economic privilege enforceable in a civil court. Members of the union are allowed to make the following offer to an employer: “Hire us at wages we will accept. If you refuse, we will not work for you, and we will call in the civil authorities to impose sanctions against you if you hire replacements.”
This version of the right to work has become a right to a specific job. The workers who previously organized under the laws governing labor unions are said to have a right to exclude other offer-makers from the jobs they have abandoned. The employer has only two options: shut down operations until the union capitulates and its members return to work, or offer terms of employment that the union’s representatives will accept. The right to exclude has shifted from the right of a worker to make an offer to exclude another worker, and the right of an employer to accept either or neither of the two offers, to the right of a group of workers to exclude their competitors from the work place. If an employer challenges this right by hiring non-union members to fill those jobs, the civil government imposes negative sanctions on him. The State has revoked his grant of immunity from State action—his right—to make his offers.
The original definition of the right to work—the right to make an offer to work in exchange for income—has become its opposite: the prohibition of employers from accepting certain offers to work. The right of the employer to exclude one worker and hire another had been the legal basis of the right of any prospective worker to make an offer: “Hire me; fire him.” These rights of exclusion are correlative. If the employer has no right to exclude existing workers, the presently unemployed worker has only a limited right to work. In the name of the right to work, as defined by the United Nations, this system of correlative rights has been abolished, and a system very nearly its opposite has been substituted in its place.
Competition as Exclusion
What is not readily understood by most people is the nature of competition in an economy marked by a division of labor. Competition is always an offer to exclude. Every offer to sell is necessarily an offer to the buyer not to buy something else. Inclusion mandates exclusion in a world of scarce resources.
An offer to sell can be an offer to sell goods and services. Because of linguistic convention, we do not usually recognize that an offer to sell money is equally an offer to sell. We say that a worker earns his wage. This confuses the analysis. The worker buys his wage. He buys money by selling his services. Similarly, the employer is said to hire workers. This also confuses the analysis. The employer buys the services of workers, moment by moment.
We speak of competition between buyers and sellers. This is incorrect. Competition is between those who are selling the same or similar goods or services. Sellers compete against sellers; buyers compete against buyers.
In trying to sell this article to the editor of The Freeman, I am not in competition with the editor of The Freeman. I am in competition with all the other authors who are trying to sell their articles to the editor of The Freeman. The editor of The Freeman is not in competition with authors. He is in competition with all the other buyers of articles that could be written by those authors who might be willing to sell articles to The Freeman.
It is in the interests of the editor of The Freeman to attract as many authors of Freeman-type articles as he can, limited only by his ability to read all the submissions and pay for the ones he accepts. Meanwhile, it is in the interest of the authors to see as many publishers of Freeman-type articles as the market will bear, and maybe even more. After all, we authors may be able to sell our articles to magazines that will not survive the competition. The important thing for authors is that the checks cash before market competition does its work.
The authors have a right to work. There is no government agency that should or will impose sanctions against authors, unless they are authors of articles on how to overthrow the government by violence or how to commit crimes. What the authors do not have is a right to have their articles purchased by some publisher. No government agency threatens any publisher with sanctions if the publisher sends back a submitted manuscript, or even throws it away. The right of the publisher to reject a manuscript is correlative to the right of an author to submit it. Any tampering with these correlative rights is a threat to the freedom of authors and publishers.
But there is another threatened participant in this arrangement: the consumer.
So far, I have limited this discussion to the rights of workers and employers to exclude. This omission, if not corrected, would threaten our economic understanding.
An author must please an editor, but pleasing an editor is only a means to an end. The editor, unless he has money to pay authors or readers of his publication (preferably both), is irrelevant to the author. The editor is merely an intermediary between the author and readers. The author is interested in gaining readers. He is like an entertainer. As singer-guitarist Bob Bennett once remarked: “I appreciate an audience. Without an audience, this would be a rehearsal.” Without readers, a published article is little more than an unread term paper. Nobody enjoys writing unread term papers.
(Note: this analysis does not apply to articles published in academic journals, which are rarely read by anyone except their editors. In this case, mere publication can result in continued employment or career advancement. This system of sanctions is called “publish or perish,” and it rests on a vast system of taxpayer coercion, government licensing of the professions, and industry-wide certification by people whose one major skill is writing what amounts to advanced term papers.)
The consumer is the final agent of free market exclusion. He decides whether or not he wants to buy a product or support a cause with his funds. He imposes sanctions: positive and negative. His money serves both as a carrot and a stick. It is more like a carrot on a stick. The lure of carrot motivates sellers, and the threat of “no sale” serves as a stick applied to the sellers’ backsides.
The consumer has the right to refuse to buy. This is the heart of the free market principle of freedom of choice. He has the right to exclude, and he does so daily. Modern advertising techniques are employed by armies of would-be sellers, yet consumers learn to ignore a myriad of daily offers to sell. The consumer may not be a skilled buyer, but he is a highly skilled non-buyer. He may buy something he really does not need, but he excludes from consideration millions of items he does not need.
In a world of scarce economic resources, no individual can afford to buy very much of the world’s productivity. If a violation of market liberty compelled him to buy even a tiny fraction of all the things offered to him, he would be bankrupt before the day was over. He would lose his ability to include and exclude. It is his liberty to refuse to buy that is central to his life as a free man.
The employer is an economic agent of future consumers. He hires and fires in terms of what he expects consumers to buy on the terms offered. The worker is also the paid economic agent of future consumers. Consumers deal with workers retroactively through employers, but ultimately it is consumers who hire and fire workers. They act through economic representatives, but it is they who act. Paraphrasing Hamlet, the consumer says: “To buy or not to buy; that is the question.” His answer determines who wins and who loses in the world of sellers of goods (employers) and sellers of labor services (workers).
Anything that infringes on the worker’s ability to make offers to consumers through employers hampers the liberty of consumers. Equally, anything that infringes on the employer’s ability to make offers to consumers through workers hampers the liberty of consumers. The right to exclude is central to the free market social order. The worker is given the right to make an offer to an employer to exclude other workers. The employer is given the right to accept or reject such offers from workers. But these two correlative rights are subordinate to the right of consumers to accept or reject offers from sellers. Workers and employers are at the mercy of consumers.
The right to work is ultimately the right to make an offer to consumers. The worker who seeks employment does not make this offer directly. He makes it through his employer.
The consumers rule over the labor market through economic agents. The employer acts as the primary economic agent of consumers. His capital is at risk. His employment decisions can be rewarded or thwarted by consumers. It is his freedom to hire and fire that maintains the authority of consumers over the market for labor.
The right to work as defined by the United Nations is an assault on the authority of consumers over the labor market. The phrase “right to work” is inherently misleading. At best, it focuses attention on the right of each man as a would-be worker to seek employment wherever he will. This definition is not illegitimate, but it is dangerously incomplete. At worst, however, it redefines the employer as the economic agent of the worker.
A free society needs much more than a right to work law. It needs a comprehensive right of free contract: the worker’s right, the employer’s right, and ultimately the consumer’s right to accept or reject offers without any threat of coercion by the civil government.This article was originally published by the Foundation for Economic Education (FEE) in The Freeman on September 1995, Volume 45, Issue: 9.
Gary North is president of The Institute for Christian Economics in Tyler, Texas. The Foundation for Economic Education (FEE), one of the oldest free-market organizations in the United States, was founded in 1946 by Leonard E. Read to study and advance the freedom philosophy. FEE's mission is to offer the most consistent case for the "first principles" of freedom: the sanctity of private property, individual liberty, the rule of law, the free market, and the moral superiority of individual choice and responsibility over coercion.
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