Toward a Federal Constitutional Right to Employment
| Publication year | 2014 |
I. INTRODUCTION
This Article outlines an argument for a federal constitutional right to employment. Any such argument must be multi-faceted and complex. But the argument below avoids the distraction of building too much technical specificity and too many contestable policy choices into the proposed right itself. While it would be irresponsible to ignore the major concerns raised by such a purported constitutional right, it would be no less irresponsible to focus prematurely on policy details that could be reformulated, or entirely bypassed, in implementing such a right.
This concern over excessive detail can be clarified by a loose anal-ogy to a hypothetical, newly proposed constitutional free speech right. Let us imagine that someone initially proposes adopting a free speech clause that in textual terms is similar to, if not identical to, our own his-torical First Amendment text.(fn1) The advocate of the proposed free speech right presents a case for such a novel right in similarly familiar terms,(fn2) and debate on recognizing a constitutional free speech right ensues.
An exceptionally perceptive critic who concedes the superficial appeal of such a right, but who is deeply troubled by what the critic pre-dicts will become long-term costs of recognizing a right to freedom of speech, is particularly disquieted by the indeterminacies lurking within a brief textual constitutional free speech right. The critic astutely asks how the proposed right will be carried out in any number of important re-spects: What would a textual constitutional free speech right mean when apparently reasonable national security interests are involved? What should free speech mean in the context of labor organizing, workplace harassment, or in the wide variety of governmental employee speech contexts? What would the proposed constitutional speech right mean for individual or group defamation, particularly in an era of instantaneous mass global communications? Or, for various forms of allegedly pornographic or graphically violent materials, how far would a free speech right extend in a diverse global culture and an era of both relativism and absolutism in moral judgments?
But these uncertainties are only the beginning. What would be done about hostile or hate speech in any number of contexts? Where would electronic and other rapidly evolving forms of privacy invasion fit in? How about commercial advertising, or corporate speech, whether di-rected to electoral campaigns or not? Should restrictions on lying in poli-tics, or on political campaign contributions, be encouraged or tolerated? What is the meaning, scope, and limiting principle of academic freedom? To what extent may speech and its consequences be licensed, charged for, taxed, or subsidized? What of speech by the government itself? What of the various kinds of public fora? What should be said about public school student speech, responsible or irresponsible, on or beyond school premises? To what extent should young children have free speech rights, as speakers, or as an audience? Which forms of dancing or computer games or clothing count as "speech"? What is the proper relation be-tween a constitutional free speech right and any number of other actual or proposed constitutional rights, or a number of vital and less vital public interests?(fn3)
Would we not find such questions, at the outset, collectively daunt-ing? In the absence of actual experience under a constitutional free speech right, we could hardly begin to answer any of the above questions with justified confidence. The mutual consistency of our answers would be doubtful. We could hardly begin to assess and compare the costs of alternative, more specific understandings of a free speech right. And we could, from the critic's perspective, hardly begin to determine whether some particular free speech regime would be worth the various direct and indirect, short- and long-term costs of a constitutional free speech right.
Adopting a constitutional right to freedom of speech would, thus, seem wildly speculative, if not simply irresponsible, in light of the doubt-less substantial, yet unpredictable, costs. And yet, today, few of us would endorse entirely erasing the text of the constitutional free speech clause.
At the very least, the loose analogy between a hypothetical newly proposed constitutional free speech right and a proposed federal constitu-tional right to employment is close enough to encourage us to resist initial despair over the latter. Any version of a constitutional right to em-ployment, however conceived and implemented, will, like a free speech clause, have substantial and unpredictable costs of one sort or another. But abandoning the idea of a constitutional employment right on such a basis would be premature at best, and grossly misguided at worst.
To explain why, and to justify initial optimism regarding a constitu-tional employment right, we can draw on several well-established juris-prudential distinctions. Consider first that valid constitutional rights should not be limited to those rights that can be guaranteed to pass some specified cost-benefit test. The purpose of recognizing a right may in part be precisely to limit the sovereignty of a cost-benefit analysis. Costs and benefits in a broad sense will often be crucial in determining the scope and limits of a right,(fn4) but a perceived imbalance of costs over ben-efits in some respects need not preclude recognizing a right.(fn5) Thus, at some point, we might want to adopt a constitutional right even where applying the right in some contexts would fail a cost-benefit calculus.
But this distinction between rights and utility does not, by itself, gain much breathing room for a constitutional employment right. Far more is gained by taking proper advantage of a second familiar jurispru-dential distinction. Often, we distinguish in the law between the general and the specific, the generic and the detailed, or a broad concept and one concrete realization of the broad concept's many possibilities. As H.L.A. Hart recognized, there would be less need to distinguish general laws from more specific conceptions if the world were simpler or our knowledge were greater.(fn6) Thus, Hart writes that "[i]f the world in which we lived were characterized only by a finite number of features, and these together with all the modes in which they could combine were known to us, then provision could be made in advance for every possibility."(fn7) But this is not our world. We should, therefore, not be surprised by our inability to easily translate even our most persuasive general legal princi-ples into their best specific operational forms.(fn8)
This limitation on our ability to grasp in advance how general prin-ciples should best be implemented hardly impeaches the general princi-ples themselves. Often, we must research, debate, and then modify, re-ject, or accept constitutional or other legal principles without supposing that the consequences of any particular form thereof can be traced in ad-vance. This intellectual headway is appropriate for critics, as well as for proponents, of the general legal principle in question.
Nevertheless, much essential work must be undertaken, first at the broad, more indeterminate level referred to above by Professor Hart.(fn9) This work reflects a distinction between what John Rawls(fn10) and then, more elaborately, Ronald Dworkin(fn11) call a general "concept" and that concept's various, more specific possible "conceptions." Rawls explains that "it seems natural to think of the concept of justice as distinct from the various conceptions of justice and as being specified by the role which these different sets of principles, these different conceptions, have in common."(fn12)
While Rawls applies this concept versus conception distinction at the level of moral philosophy or broad jurisprudence, Dworkin empha-sizes, as we do herein, the role of this distinction at the level of American constitutional rights.(fn13) Against accusations that a constitutional right to employment is vague or indeterminate, we can borrow Dworkin's obser-vation, regarding the great clauses of the Constitution, that such clauses are "vague" only if they are assumed to be "botched or incomplete or schematic attempts to lay down particular conceptions."(fn14) Our approach varies, however, in an effort to address the crucial preliminary task of assessing a constitutional right of employment while remaining as neutral as possible among the ultimately more and less costly, and otherwise better and worse, ways of implementing such a right.
Relevant as well is the practical recognition that it is often unwise to require even a congressional statute to provide much substantive direc-tion as to how a statute is to be fleshed out and implemented in complex, evolving environments calling for technical judgment and multi-disciplinary expertise. Thus, the idea that Congress, rather than expert administrative agencies, must choose among possible paths in clarifying, concretizing, and implementing a statute is today largely an anachro-nism.(fn15) This pragmatic realism carries even greater force at the broader, more general level of constitutional rights.
Of course, it is impossible to meaningfully discuss a proposed con-stitutional...
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