Under what circumstances should legislation protect certain people better than others?
The authors of an op-ed in Wednesday's New York Times believe that a precipitous decline in private sector union membership over the past few decades justifies granting special legal protections to those who seek to form labor unions.
In practice, this would mean judges could overrule state-level "right-to-work" legislation that prevents private corporations (i.e. labor unions) from requiring workers in certain industries to pay dues that may be used for political and other purposes of which the worker may not favor.
It is frightening that the New York Times will argue (correctly) against subsidies for oil companies and tax loopholes for the wealthiest among us and then publish an op-ed that requests government provide exclusive protections to a different interest group.
Instead of accepting changing economic realities as the reason why private sector union membership has dropped to 6.9%, the authors argue it has declined because legislation is somehow outdated.
The authors recommend that federal law provide specific protections for their particular interest group. However, listing protected classes in legislation leaves many people out inevitably. Today, discriminating on the basis of a person's race, color, sex, religion, or national origin is prohibited by federal law. The authors of this op-ed would include "seeking union membership" to this list. LGBT activists want to add "sexual orientation" and "gender expression" to this list. Still other interest groups want their terms added.
More complex, specific, discriminatory legislation like that requested by the authors of the Times op-ed create two classes of people before the law: those protected explicitly and those who might be protected if it suits the interpretation of a judge.
The horrific Jim Crow laws in the south were an example of this very problem. Southern state governments chose to elevate one group of people over others through the force of law. This lead to institutionalized racism and dissuaded many non-racist Southerners from acting decently toward their fellow man, white, black or otherwise.
Without noticing the irony, the authors attempt to illustrate common cause with minorities when they write, "The labor and civil rights movements have shared values (advancing human dignity), shared interests (people of color are disproportionately working-class), shared historic enemies (the Jim Crow South was also a bastion of right-to-work laws) and shared tactics (sit-ins, strikes and other forms of nonviolent protest)."
In fact, the labor and civil rights movements have been opponents historically as racism prompted the first "prevailing wage" laws in the late 1800s. Federal involvement in this sphere began in 1931. The Davis-Bacon Act permitted government bodies to pay well connected construction companies higher fees, thus freezing out both less expensive competitors and minority workers seen as taking "white people's jobs."
Additionally, minimum wage laws today make it harder for unskilled workers–particularly minority youth and immigrants–to get jobs by putting a floor on the level of skill an employer may hire legally.
If the authors' goal is to create a "winner-take-all plutocracy" of union employees at the expense of workers and taxpayers, their plan is sound. However, if the goal is equal protection under the law, their plan is horribly flawed.
It is possible to protect everyone's rights equally only if the law is simple and without qualification.
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