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Gomillion v. Lightfoot,
364 U.S. 339
Supreme Court of the United States
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
This litigation challenges the validity, under the United States Constitution, of Local Act No. 140, passed by the Legislature of Alabama in 1957, redefining the boundaries of the City of Tuskegee. Petitioners, Negro citizens of Alabama who were, at the time of this redistricting measure, residents of the City of Tuskegee, brought an action in the United States District Court for the Middle District of Alabama for a declaratory judgment that Act 140 is unconstitutional, and for an injunction to restrain the Mayor and officers of Tuskegee and the officials of Macon County, Alabama, from enforcing the Act against them and other Negroes similarly situated. Petitioners’ claim is that enforcement of the statute, which alters the shape of Tuskegee from a square to an uncouth twenty-eight-sided figure, will constitute a discrimination against them in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Constitution and will deny them the right to vote in defiance of the Fifteenth Amendment.
The respondents moved for dismissal of the action for failure to state a claim upon which relief could be granted and for lack of jurisdiction of the District Court.
The court granted the motion, stating, “This Court has no control over, no supervision over, and no power to change any boundaries of municipal corporations fixed by a duly convened and elected legislative body, acting for the people in the State of Alabama.” 167 F.Supp. 405, 410. On appeal, the Court of Appeals for the Fifth Circuit, affirmed the judgment, one judge dissenting. 270 F.2d 594. We brought the case here since serious questions were raised concerning the power of a State over its municipalities in relation to the Fourteenth and Fifteenth Amendments. 362 U.S. 916.
At this stage of the litigation we are not concerned with the truth of the allegations, that is, the ability of petitioners to sustain their allegations by proof. The sole question is whether the allegations entitle them to make good on their claim that they are being denied rights under the United States Constitution. The complaint, charging that Act 140 is a device to disenfranchise Negro citizens, alleges the following facts: Prior to Act 140 the City of Tuskegee was square in shape; the Act transformed it into a strangely irregular twenty-eight-sided figure as indicated in the diagram appended to this opinion. The essential inevitable effect of this redefinition of Tuskegee’s boundaries is to remove from the city all save only four or five of its 400 Negro voters while not removing a single white voter or resident. The result of the Act is to deprive the Negro petitioners discriminatorily of the benefits of residence in Tuskegee, including, inter alia, the right to vote in municipal elections.
These allegations, if proven, would abundantly establish that Act 140 was not an ordinary geographic redistricting measure even within familiar abuses of gerrymandering. If these allegations upon a trial remained uncontradicted or unqualified, the conclusion would be irresistible, tantamount (be equivalent for) for all practical purposes to a mathematical demonstration, that the legislation is solely concerned with segregating white and colored voters by fencing Negro citizens out of town so as to deprive them of their pre-existing municipal vote.
It is difficult to appreciate what stands in the way of adjudging a statute having this inevitable effect invalid in light of the principles by which this Court must judge, and uniformly has judged, statutes that, howsoever speciously defined, obviously discriminate against colored citizens. “The [Fifteenth] Amendment nullifies sophisticated as well as simple-minded modes of discrimination.” Lane v. Wilson, 307 U. S. 268, 307 U. S. 275.
The complaint amply alleges a claim of racial discrimination. Against this claim the respondents have never suggested, either in their brief or in oral argument, any countervailing municipal function which Act 140 is designed to serve. The respondents invoke generalities expressing the State’s unrestricted power — unlimited, that is, by the United States Constitution — to establish, destroy, or reorganize by contraction or expansion its political subdivisions, to-wit, cities, counties, and other local units. We freely recognize the breadth (amplitud) and importance of this aspect of the State’s political power. To exalt this power into an absolute is to misconceive the reach and rule of this Court’s decisions in the leading case of Hunter v. Pittsburgh, 207 U. S. 161, and related cases relied upon by respondents.
The Hunter case involved a claim by citizens of Allegheny, Pennsylvania, that the General Assembly of that State could not direct a consolidation of their city and Pittsburgh over the objection of a majority of the Allegheny voters. It was alleged that, while Allegheny already had made numerous civic improvements, Pittsburgh was only then planning to undertake such improvements, and that the annexation would therefore greatly increase the tax burden on Allegheny residents. All that the case held was (1) that there is no implied contract between a city and its residents that their taxes will be spent solely for the benefit of that city, and (2) that a citizen of one municipality is not deprived of property without due process of law by being subjected to increased tax burdens as a result of the consolidation of his city with another. Related cases upon which the respondents also rely, such as Trenton v. New Jersey, 262 U. S. 182; Pawhuska v. Pawhuska Oil & Gas Co., 250 U. S. 394, and Laramie County v. Albany County, 92 U. S. 307, are far off the mark. They are authority only for the principle that no constitutionally protected contractual obligation arises between a State and its subordinate governmental entities solely as a result of their relationship.
In short, the cases that have come before this Court regarding legislation by States dealing with their political subdivisions fall into two classes:
(1) those in which it is claimed that the State, by virtue of the prohibition against impairment of the obligation of contract (Art. I, § 10) and of the Due Process Clause of the Fourteenth Amendment, is without power to extinguish, or alter the boundaries of, an existing municipality; and
(2) in which it is claimed that the State has no power to change the identity of a municipality whereby citizens of a preexisting municipality suffer serious economic disadvantage.
Neither of these claims is supported by such a specific limitation upon State power as confines the States under the Fifteenth Amendment.
As to the first category, it is obvious that the creation of municipalities — clearly a political act — does not come within the conception of a contract under the Dartmouth College Case, 4 Wheat. 518.
As to the second, if one principle clearly emerges from the numerous decisions of this Court dealing with taxation, it is that the Due Process Clause affords no immunity against mere inequalities in tax burdens, nor does it afford protection against their increase as an indirect consequence of a State’s exercise of its political powers.
Particularly in dealing with claims under broad provisions of the Constitution, which derive content by an interpretive process of inclusion and exclusion, it is imperative that generalizations, based on and qualified by the concrete situations that gave rise to them, must not be applied out of context in disregard of variant controlling facts. Thus, a correct reading of the seemingly unconfined dicta of Hunter and kindred cases is not that the State has plenary power to manipulate in every conceivable way, for every conceivable purpose, the affairs of its municipal corporations, but rather that the State’s authority is unrestrained by the particular prohibitions of the Constitution considered in those cases.
The Hunter opinion itself intimates that a state legislature may not be omnipotent even as to the disposition of some types of property owned by municipal corporations, 207 U.S. at 207 U. S. 178-181. Further, other cases in this Court have refused to allow a State to abolish a municipality, or alter its boundaries, or merge it with another city, without preserving to the creditors of the old city some effective recourse for the collection of debts owed them. Shapleigh v. San Angelo, 167 U. S. 646; Mobile v. Watson, 116 U. S. 289; Mount Pleasant v. Beckwith, 100 U. S. 514; Broughton v. Pensacola, 93 U. S. 266. For example, in Mobile v. Watson, the Court said:
“Where the resource for the payment of the bonds of a municipal corporation is the power of taxation existing when the bonds were issued, any law which withdraws or limits the taxing power, and leaves no adequate means for the payment of the bonds, is forbidden by the constitution of the United States, and is null and void.” Mobile v. Watson, supra, at 116 U. S. 305.
This line of authority conclusively shows that the Court has never acknowledged that the States have power to do as they will with municipal corporations regardless of consequences. Legislative control of municipalities, no less than other state power, lies within the scope of relevant limitations imposed by the United States Constitution. The observation in Graham v. Folsom, 200 U. S. 248, 200 U. S. 253, becomes relevant: “The power of the state to alter or destroy its corporations is not greater than the power of the state to repeal its legislation.” In that case, which involved the attempt by state officials to evade the collection of taxes to discharge the obligations of an extinguished township, Mr. Justice McKenna, writing for the Court, went on to point out, with reference to the Mount Pleasant and Mobile cases:
“It was argued in those cases, as it is argued in this, that such alteration or destruction of the subordinate governmental divisions was a proper exercise of legislative power, to which creditors had to submit. The argument did not prevail. It was answered, as we now answer it, that such power, extensive though it is, is met and overcome by the provision of the Constitution of the United States which forbids a state from passing any law impairing the obligation of contracts. . . .” 200 U.S. at 200 U. S. 253-254.
If all this is so in regard to the constitutional protection of contracts, it should be equally true that, to paraphrase, such power, extensive though it is, is met and overcome by the Fifteenth Amendment to the Constitution of the United States, which forbids a State from passing any law which deprives a citizen of his vote because of his race. The opposite conclusion, urged upon us by respondents, would sanction the achievement by a State of any impairment of voting rights whatever, so long as it was cloaked in the garb of the realignment of political subdivisions. “It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.” Frost & Frost Trucking Co. v. Railroad Commission of California, 271 U. S. 583, 271 U. S. 594.
The respondents find another barrier to the trial of this case in Colegrove v. Green, 328 U. S. 549. In that case, the Court passed on an Illinois law governing the arrangement of congressional districts within that State. The complaint rested upon the disparity of population between the different districts which rendered the effectiveness of each individual’s vote in some districts far less than in others. This disparity came to pass solely through shifts in population between 1901, when Illinois organized its congressional districts, and 1946, when the complaint was lodged. During this entire period, elections were held under the districting scheme devised in 1901. The Court affirmed the dismissal of the complaint on the ground that it presented a subject not meet for adjudication. * The decisive facts in this case, which at this stage must be taken as proved, are wholly different from the considerations found controlling in Colegrove.
That case involved a complaint of discriminatory apportionment of congressional districts. The appellants in Colegrove complained only of a dilution of the strength of their votes as a result of legislative inaction over a course of many years. The petitioners here complain that affirmative legislative action deprives them of their votes and the consequent advantages that the ballot affords. When a legislature thus singles out a readily isolated segment of a racial minority for special discriminatory treatment, it violates the Fifteenth Amendment. In no case involving unequal weight in voting distribution that has come before the Court did the decision sanction a differentiation on racial lines whereby approval was given to unequivocal withdrawal of the vote solely from colored citizens. Apart from all else, these considerations lift this controversy out of the so-called “political” arena and into the conventional sphere of constitutional litigation.
In sum, as Mr. Justice Holmes remarked when dealing with a related situation in Nixon v. Herndon, 273 U. S. 536, 273 U. S. 540, “Of course the petition concerns political action,” but “[t]he objection that the subject matter of the suit is political is little more than a play upon words.” A statute which is alleged to have worked unconstitutional deprivations of petitioners’ rights is not immune to attack simply because the mechanism employed by the legislature is a redefinition of municipal boundaries. According to the allegations here made, the Alabama Legislature has not merely redrawn the Tuskegee city limits with incidental inconvenience to the petitioners; it is more accurate to say that it has deprived the petitioners of the municipal franchise and consequent rights, and, to that end, it has incidentally changed the city’s boundaries. While in form this is merely an act redefining metes and bounds (land boundaries/limites), if the allegations are established, the inescapable human effect of this essay in geometry and geography is to despoil colored citizens, and only colored citizens, of their theretofore enjoyed voting rights. That was no Colegrove v. Green.
When a State exercises power wholly (completamente) within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right. This principle has had many applications. It has long been recognized in cases which have prohibited a State from exploiting a power acknowledged to be absolute in an isolated context to justify the imposition of an “unconstitutional condition.” What the Court has said in those cases is equally applicable here, viz. (namely; in other words), that “Acts generally lawful may become unlawful when done to accomplish an unlawful end, United States v. Reading Co., 226 U. S. 324, 226 U. S. 357, and a constitutional power cannot be used by way of condition to attain an unconstitutional result.” Western Union Telegraph Co. v. Foster, 247 U. S. 105, 247 U. S. 114. The petitioners are entitled to prove their allegations at trial.
For these reasons, the principal conclusions of the District Court and the Court of Appeals are clearly erroneous, and the decision below must be reversed.
MR. JUSTICE DOUGLAS, while joining the opinion of the Court, adheres to the dissents in Colegrove v. Green, 328 U. S. 549, and South v. Peters, 339 U. S. 276.
* Soon after the decision in the Colegrove case, Governor Dwight H. Green of Illinois, in his 1947 biennial message to the legislature, recommended a reapportionment. The legislature immediately responded, Ill.Sess.Laws 1947, p. 879, and, in 1951, redistricted again. Ill.Sess.Laws 1951, p. 1924.
APPENDIX TO OPINION OF THE COURT.
CHART SHOWING TUSKEGGEE, ALABAMA,
BEFORE AND AFTER ACT 140
(The entire area of the square comprised of the City prior to Act 140. The irregular black-bordered figure within the square represents the post-enactment city.)
MR. JUSTICE WHITTAKER, concurring.
I concur in the Court’s judgment, but not in the whole of its opinion. It seems to me that the decision should be rested not on the Fifteenth Amendment, but rather on the Equal Protection Clause of the Fourteenth Amendment to the Constitution. I am doubtful that the averments of the complaint, taken for present purposes to be true, show a purpose by Act No. 140 to abridge petitioners’ “right . . . to vote” in the Fifteenth Amendment sense. It seems to me that the “right . . . to vote” that is guaranteed by the Fifteenth Amendment is but the same right to vote as is enjoyed by all others within the same election precinct, ward or other political division. And, inasmuch as no one has the right to vote in a political division, or in a local election concerning only an area in which he does not reside, it would seem to follow that one’s right to vote in Division A is not abridged by a redistricting that places his residence in Division B if he there enjoys the same voting privileges as all others in that Division, even though the redistricting was done by the State for the purpose of placing a racial group of citizens in Division B, rather than A.
But it does seem clear to me that accomplishment of a State’s purpose — to use the Court’s phrase — of “fencing Negro citizens out of” Division A and into Division B is an unlawful segregation of races of citizens, in violation of the Equal Protection Clause of the Fourteenth Amendment, Brown v. Board of Education, 347 U. S. 483; Cooper v. Aaron, 358 U. S. 1, and, as stated, I would think the decision should be rested on that ground — which, incidentally, clearly would not involve, just as the cited cases did not involve, the Colegrove problem.
* 15th Amendment to the U.S. Constitution
The 15th Amendment to the Constitution granted African American men the right to vote by declaring that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” Although ratified on February 3, 1870, the promise of the 15th Amendment would not be fully realized for almost a century. Through the use of poll taxes, literacy tests and other means, Southern states were able to effectively disenfranchise African Americans. It would take the passage of the Voting Rights Act of 1965 before the majority of African Americans in the South were registered to vote.
También se detalla quienes no podrán integrar una nueva bancada. Conoce los detalles.
Tras la declaratorio del TC de inconstitucional la “Ley Antitránsfuga”, el Congreso hizo las modificaciones en su reglamento para la formación de bancadas, creando la figura de bancadas mixtas.
Hoy en Normas Legales, de El Peruano, se detalla el cambio, en el que se indica la modificación en los numerales 4 y 5 del artículo 37 en el reglamento, indicando que:
“Cada grupo parlamentario aprueba su reglamento interno, el que deberá respetar las garantías del debido procedimiento y contener los derechos y deberes de sus integrantes. este reglamento es aprobado por mayoría del número legal de sus miembros y obliga a todos ellos, al ser presentado ante el Consejo Directivo”, sostiene.
Respecto al retiro de un congresista de la bancada dice, que “el congresista que considere que ha sido expulsado de manera irregular de su grupo parlamentario, podrá accionar en primera instancia ante la Junta de Portavoces y en segunda y definitiva instancia ante el Consejo Directivo, agotando la instancia parlamentaria”.
Asimismo, señala que, si la sanción es revocada o anulada, podrá optar por regresar a su grupo parlamentario, adherirse a otro, o pasar a integrar el grupo parlamentario mixto.
Según la modificación del reglamente, el grupo parlamentario mixto tiene los mismos derechos y atribuciones que corresponden al grupo parlamentario integrado por el menor número de congresistas formado al inicio del período parlamentario, asimismo, en cuanto a la aplicación de los principios de proporcionalidad y pluralismo.
De la misma forma, la modificación del reglamento sostiene que, no pueden constituir nuevo grupo parlamentario ni adherirse a otro, los congresistas que renuncien, sean separados o hayan sido expulsados del grupo parlamentario por el que fueron elegidos, salvo el caso de alianzas electorales conforme a ley, que hayan decidido disolverse, en cuyo caso podrán conformar grupo parlamentario.
Precisan que, dicha prohibición no resulta aplicable a los congresistas que renuncien al grupo parlamentario, por vulneración a las garantías del debido procedimiento o a los derechos contenidos en el reglamento interno del grupo parlamentario, pudiendo recurrir para tales efectos, en primera instancia ante el grupo parlamentario y en segunda y definitiva instancia ante el Consejo Directivo.
Ver ademas: TC declara inconstitucional ley antitránsfuga y congresistas podrán cambiar de bancada
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Americans think they live in a democracy. But their workplaces are small tyrannies.
Updated byJul 17, 2017, 8:20am EDT
Consider some facts about how American employers control their workers. Amazon prohibits employees from exchanging casual remarks while on duty, calling this “time theft.” Apple inspects the personal belongings of its retail workers, some of whom lose up to a half-hour of unpaid time every day as they wait in line to be searched. Tyson prevents its poultry workers from using the bathroom. Some have been forced to urinate on themselves while their supervisors mock them.
About half of US employees have been subject to suspicionless drug screening by their employers. Millions are pressured by their employers to support particular political causes or candidates. Soon employers will be empowered to withhold contraception coveragefrom their employees’ health insurance. They already have the right to penalize workers for failure to exercise and diet, by charging them higher health insurance premiums.
How should we understand these sweeping powers that employers have to regulate their employees’ lives, both on and off duty? Most people don’t use the term in this context, but wherever some have the authority to issue orders to others, backed by sanctions, in some domain of life, that authority is a government
We usually assume that “government” refers to state authorities. Yet the state is only one kind of government. Every organization needs some way to govern itself — to designate who has authority to make decisions concerning its affairs, what their powers are, and what consequences they may mete out to those beneath them in the organizational chart who fail to do their part in carrying out the organization’s decisions.
Managers in private firms can impose, for almost any reason, sanctions including job loss, demotion, pay cuts, worse hours, worse conditions, and harassment. The top managers of firms are therefore the heads of little governments, who rule their workers while they are at work — and often even when they are off duty.
Every government has a constitution, which determines whether it is a democracy, a dictatorship, or something else. In a democracy like the United States, the government is “public.” This means it is properly the business of the governed: transparent to them and servant to their interests. They have a voice and the power to hold rulers accountable.
Not every government is public in this way. When King Louis XIV of France said, “L’etat, c’est moi,” he meant that his government was his business alone, something he kept private from those he governed. They weren’t entitled to know how he operated it, had no standing to insist he take their interests into account in his decisions, and no right to hold him accountable for his actions.
Like Louis XIV’s government, the typical American workplace is kept private from those it governs. Managers often conceal decisions of vital interest to their workers. Often, they don’t even give advance notice of firm closures and layoffs. They are free to sacrifice workers’ dignity in dominating and humiliating their subordinates. Most employer harassment of workers is perfectly legal, as long as bosses mete it out on an equal-opportunity basis. (Walmart and Amazon managers are notorious for berating and belittling their workers.) And workers have virtually no power to hold their bosses accountable for such abuses: They can’t fire their bosses, and can’t sue them for mistreatment except in a very narrow range of cases, mostly having to do with discrimination.
Why are workers subject to private government? The state has set the default terms of the constitution of workplace government through its employment laws. The most important source of employers’ power is the default rule of employment at will. Unless the parties have otherwise agreed, employers are free to fire workers for almost any or no reason. This amounts to an effective grant of power to employers to rule the lives of their employees in almost any respect — not just on the job but off duty as well. And they have exercised that power.
Scotts, the lawn care company, fired an employee for smoking off duty. After Rep. Rodney Frelinghuysen (R-NJ) notified Lakeland Bank that an employee had complained he wasn’t holding town hall meetings, the bank intimidated her into resigning. San Diego Christian College fired a teacher for having premarital sex — and hired her fiancé to fill her post. Bosses are dictators, and workers are their subjects.
American public discourse doesn’t give us helpful ways to talk about the dictatorial rule of employers. Instead, we talk as if workers aren’t ruled by their bosses. We are told that unregulated markets make us free, and that the only threat to our liberties is the state. We are told that in the market, all transactions are voluntary. We are told that since workers freely enter and exit the labor contract, they are perfectly free under it. We prize our skepticism about “government,” without extending our critique to workplace dictatorship.
Why do we talk like this? The answer takes us back to free market ideas developed before the Industrial Revolution. In 17th- and 18th-century Britain, big merchants got the state to grant them monopolies over trade in particular goods, forcing small craftsmen to submit to their regulations. A handful of aristocratic families enjoyed a monopoly on land, due to primogeniture and entail, which barred the breakup and sale of any part of large estates. Farmers could rent their land only on short-term leases, which forced them to bow and scrape before their landlords, in a condition of subordination not much different from servants, who lived in their masters’ households and had to obey their rules.
The problem was that the state had rigged the rules of the market in favor of the rich. Confronted with this economic situation, many people argued that free markets would promote equality and workers’ interests by enabling them to go into business for themselves and thereby escapesubordination to the owners of capital.
No wonder some of the early advocates of free markets in 17th-century England were called “Levellers.” These radicals, who emerged during the English civil war, wanted to abolish the monopolies held by the big merchants and aristocrats. They saw the prospects of greater equality that might come from opening up to ordinary workers opportunities for manufacture, trade, and farming one’s own land.
In the 18th century, Adam Smith was the greatest advocate for the view that replacing monopolies, primogeniture, entail, and involuntary servitude with free markets would enable laborers to work on their own behalf. His key assumption was that incentives were more powerful than economies of scale. When workers get to keep all of the fruits of their labor, as they do when self-employed, they will work much harder and more efficiently than if they are employed by a master, who takes a cut of what they produce. Indolent aristocratic landowners can’t compete with yeoman farmers without laws preventing land sales. Free markets in land, labor, and commerce will therefore lead to the triumph of the most efficient producer, the self-employed worker, and the demise of the idle, stupid, rent-seeking rentier.
Smith and his contemporaries looked across the Atlantic and saw that America appeared to be realizing these hopes — although only for white men. The great majority of the free population in the Revolutionary period was self-employed, as either a yeoman farmer or an independent artisan or merchant.
In the United States, Thomas Paine was the great promoter of this vision. Indeed, his views on political economy sound as if they could have been ripped out of the GOP Freedom Caucus playbook. Paine argued that individuals can solve nearly all of their problems on their own, without state meddling. A good government does nothing more than secure individuals in “peace and safety” in the free pursuit of their occupations, with the lowest possible tax burden. Taxation is theft. People living off government pay are social parasites. Government is the chief cause of poverty. Paine was a lifelong advocate of commerce, free trade, and free markets. He called for hard money and fiscal responsibility.
Paine was the hero of labor radicals for decades after his death in 1809, because they shared his hope that free markets would yield an economy almost entirely composed of small proprietors. An economy of small proprietors offers a plausible model of a free society of equals: each individual personally independent, none taking orders from anyone else, everyone middle class.
Abraham Lincoln built on the vision of Smith and Paine, which helped to shape the two key planks of the Republican Party platform: opposition to the extension of slavery in the territories, and the Homestead Act. Slavery, after all, enabled masters to accumulate vast tracts of land, squeezing out small farmers and forcing them into wage labor. Prohibiting the extension of slavery into the territories and giving away small plots of land to anyone who would work it would realize a society of equals in which no one is ever consigned to wage labor for life. Lincoln, who helped create the political party that now defends the interests of business, never wavered from the proposition that true free labor meant freedom from wage labor.
The Industrial Revolution, however — well underway by Lincoln’s time — ultimately dashed the hopes of joining free markets with independent labor in a society of equals. Smith’s prediction — that economies of scale would be less important than the incentive effects of enabling workers to reap all the fruits of their labor — was defeated by industrial technologies that required massive accumulations of capital. The US, with its access to territories seized from Native Americans, was able to stave off the bankruptcy of self-employed farmers and other small proprietors for far longer than Europe. But industrialization, population growth, the closure of the frontier, and railroad monopolies doomed the sole proprietorship to the margins of the economy, even in North America.
The Smith-Paine-Lincoln libertarian vision was rendered largely irrelevant by industrialization, which created a new model of wage labor, with large companies taking the place of large landowners. Yet strangely, many people persist in using Smith’s and Paine’s rhetoric to describe the world we live in today. We are told that our choice is between free markets and state control — but most adults live their working lives under a third thing entirely: private government. A vision of what egalitarians hoped market society would deliver before the Industrial Revolution — a world without private workplace government, with producers interacting only through markets and the state — has been blindly carried over to the modern economy by libertarians and their pro-business fellow travelers.
There is a condition called hemiagnosia, whose sufferers cannot perceive one half of their bodies. A large class of libertarian-leaning thinkers and politicians, with considerable public following, resemble patients with this condition: They cannot perceive half of the economy — the half that takes place beyond the market, after the employment contract is accepted, where workers are subject to private, arbitrary, unaccountable government.
What can we do about this? Americans are used to complaining about how government regulation restricts our freedom. So we should recognize that such complaints apply, with at least as much force, to private governments of the workplace. For while the punishments employers can impose for disobedience aren’t as severe as those available to the state, the scope of employers’ authority over workers is more sweeping and exacting, its power more arbitrary and unaccountable. Therefore, it is high time we considered remedies for reining in the private government of the workplace similar to those we have long insisted should apply to the state.
Three types of remedy are of special importance. First, recall a key demand the United States made of communist dictatorships during the Cold War: Let dissenters leave. Although workers are formally free to leave their workplace dictatorships, they often pay a steep price. Nearly one-fifth of American workers labor under noncompete clauses. This means they can’t work in the same industry if they quit or are fired.
And it’s not just engineers and other “knowledge economy” workers who are restricted in this way: Even some minimum wage workers are forced to sign noncompetes. Workers who must leave their human capital behind are not truly free to quit. Every state should follow California’s example and ban noncompete clauses from work contracts.
Second, consider that if the state imposed surveillance and regulations on us in anything like the way that private employers do, we would rightly protest that our constitutional rights were being violated. American workers have few such rights against their bosses, and the rights they have are very weakly enforced. We should strengthen the constitutional rights that workers have against their employers, and rigorously enforce the ones the law already purports to recognize.
Among the most important of these rights are to freedom of speech and association. This means employers shouldn’t be able to regulate workers’ off-duty speech and association, or informal non-harassing talk during breaks or on duty, if it does not unduly interfere with job performance. Nor should they be able to prevent workers from supporting the candidate of their choice.
Third, we should make the government of the workplace more public (in the sense that political scientists use the term). Workers need a real voice in how they are governed — not just the right to complain without getting fired, but an organized way to insist that their interests have weight in decisions about how work is organized.
One way to do this would be to strengthen the rights of labor unions to organize. Labor unions are a vital tool for checking abusive and exploitative employers. However, due to lax enforcement of laws protecting the right to organize and discuss workplace complaints, many workers are fired for these activities. And many workers shy away from unionization, because they prefer a collaborative to an adversarial relationship to their employer.
Yet even when employers are decent, workers could still use a voice. In many of the rich states of Europe, they already have one, even if they don’t belong to a union. It’s called “co-determination” — a system of joint workplace governance by workers and managers, which automatically applies to firms with more than a few dozen employees. Under co-determination, workers elect representatives to a works council, which participates in decision-making concerning hours, layoffs, plant closures, workplace conditions, and processes. Workers in publicly traded firms also elect some members of the board of directors of the firm.
Against these proposals, libertarian and neoliberal economists theorize that workers somehow suffer from provisions that would secure their dignity, autonomy, and voice at work. That’s because the efficiency of firms would, in theory, drop — along with profits, and therefore wages — if managers did not have maximum control of their workforce. These thinkers insist that employers already compensate workers for any “oppressive” conditions that may exist by offering higher wages. Workers are therefore free to make the trade-off between wages and workplace freedom when they seek a job.
This theory supposes, unrealistically, that entry-level workers already know how well they will be treated when they apply for jobs at different workplaces, and that low-paid workers have ready access to decent working conditions in the first place. It’s telling that the same workers who suffer the worst working conditions also suffer from massive wage theft. One study estimates that employers failed to pay $50 billion in legally mandated wages in one year. Two-thirds of workers in low-wage industries suffered wage theft, costing them nearly 15 percent of their total earnings. This is three times the amount of all other thefts in the United States.
If employers have such contempt for their employees that they steal their wages, how likely is it that they are making it up to them with better working conditions?
It’s also easy to theorize that workers are better off under employer dictatorship, because managers supposedly know best to govern the workplace efficiently. But if efficiency means that workers are forced to pee in their pants, why shouldn’t they have a say in whether such “efficiency” is worthwhile? The long history of American workers’ struggles to get the right to use the bathroom at work — something long enjoyed by our European counterparts — says enough about economists’ stunted notion of efficiency.
Meanwhile, our false rhetoric of workers’ “choice” continues to obscure the ways the state is handing ever more power to workplace dictators. The Trump administration’s Labor Department is working to roll back the Obama administration’s expansion of overtime pay. It is giving a free pass to federal contractors who have violated workplace safety and federal wage and hours laws. It has canceled the paycheck transparency rule, making it harder for women to know when they are being paid less for the same work as men.
Private government is arbitrary, unaccountable government. That’s what most Americans are subject to at work. The history of democracy is the history of turning governance from a private matter into a public one. It has been about making government public — answerable to the interests of citizens and not just the interests of their rulers. It’s time to apply the lessons we have learned from this history to the private government of the workplace. Workers deserve a voice not just on Capitol Hill but in Amazon warehouses, Silicon Valley technology companies, and meat-processing plants as well.
Elizabeth Anderson is the Arthur F. Thurnau Professor and John Dewey Distinguished University Professor of Philosophy and Women’s studies at the University of Michigan. She is the author of Private Government: How Employers Rule Our Lives (and Why We Don’t Talk About It) (Princeton University Press, 2017).
The cellphone video is vivid. A border patrol agent aims his gun at an unarmed 15-year-old some 60 feet away, across the border with Mexico, and shoots him dead.
On Tuesday, the U.S. Supreme Court hears arguments in a case testing whether the family of the dead boy can sue the agent for damages in the U.S.
Between 2005 and 2013, there were 42 such cross-border shootings, a dramatic increase over earlier times.
The shooting took place on the border between El Paso, Texas, and Juárez, Mexico.
The area is about 180 feet across. Eighty feet one way leads to a steep incline and an 18-foot fence on the U.S. side — part of the so-called border wall that has already been built. An almost equal distance the other way is another steep incline leading to a wall topped by a guardrail on the Mexican side.
In between is a the dry bed of the Rio Grande with an invisible line in the middle that separates the U.S. and Mexico. Overhead is a railroad bridge with huge columns supporting it, connecting the two countries.
In June 2010, Sergio Hernández and his friends were playing chicken, daring each other to run up the incline on the U.S. side and touch the fence, according briefs filed by lawyers for the Hernández family.
At some point U.S. border agent Jesus Mesa, patrolling the culvert, arrived on a bicycle, grabbed one of the kids at the fence on the U.S. side, and the others scampered away. Fifteen-year-old Sergio ran past Mesa and hid behind a pillar beneath the bridge on the Mexican side.
As the boy peeked out, Agent Mesa, 60 feet or so away on the U.S. side, drew his gun, aimed it at the boy, and fired three times, the last shot hitting the boy in the head.
Although agents quickly swarmed the scene, they are forbidden to cross the border. They did not offer medical aid, and soon left on their bikes, according to lawyers for the family.
A day after the shooting, the FBI’s El Paso office issued a press release asserting that agent Mesa fired his gun after being “surrounded” by suspected illegal aliens who “continued to throw rocks at him.”
Two days later, cell phone videos surfaced contradicting that account. In one video the boy’s small figure can be seen edging out from behind the column; Mesa fires, and the boy falls to the ground.
“The statement literally says he was surrounded by these boys, which is just objectively false,” says Bob Hilliard, who represents the family. Pointing to the cell phone video, he says it is “clear that nobody was near ” agent Mesa.
In one video, a woman’s voice is heard saying that some of the boys had been throwing rocks, but the video does not show that, and by the time the shooting takes place, nobody is surrounding agent Mesa.
The U.S. Department of Justice decided not to prosecute Mesa. Among other things, the department concluded that it did not have jurisdiction because the boy was not on U.S. soil when he was killed.
Mexico charged the agent with murder, but when the U.S. refused to extradite him, no prosecution could go forward.
U.S. Customs and Border Patrol did not discipline agent Mesa—a fact that critics, including high-ranking former agency officials, say reflects a pattern inside the agency.
The parents of the slain boy, however, have sued Mesa for damages, contending that the killing violated the U.S. Constitution by depriving Sergio Hernández of his life.
“I can’t believe that this is allowed to happen – that a border patrol agent is allowed to kill someone on the Mexican side, and nothing happens,” Sergio’s mother, Maria Guadalupe Güereca Betancour, says through an interpreter.
As the case comes to the Supreme Court, there has been no trial yet and no court finding of facts. Mesa continues to maintain that he shot the boy in self-defense after being surrounded by rock-throwing kids.
That’s a scenario that Mesa’s lawyers say is borne out by other videos from stationary cameras that have not been released to the public.
“It was clear that Agent Mesa was in an area that is wrought with narcotics trafficking and human trafficking,” asserts Randolph Ortega, who represents Mesa on behalf of the border patrol agents union. “And it’s clear that, in my opinion, he was defending himself.”
The only question before the Supreme Court centers on whether the Hernández family has the right to sue. A divided panel of the Fifth Circuit Court of Appeals concluded that no reasonable officer would have done what Agent Mesa did, and that therefore the family could sue.
However, the full court of appeals reversed that judgment, ruling that because the Hernández boy was standing on the Mexico side of the border and was a Mexican citizen with no ties to the United States, his family could not sue for a violation of the U.S. Constitution. Moreover, the appeals court said that even if the facts as alleged by the Hernández family are true, Mesa is entitled to qualified immunity, meaning he cannot be sued because there is no clearly established body of law barring his conduct.
Lawyers for the Hernández family counter that Supreme Court precedents establish a practical approach in determining whether there is a right to sue for the use of excessive force in circumstances like these. Lawyer Hilliard says yes, the boy was across the border when the shots were fired, but by just 60 feet.
“This is a domestic action by a domestic police officer standing in El Paso, Texas, who is to be constrained by this country’s constitution,” Hilliard contends. “There’s a U.S. Supreme Court case that says a law enforcement officer cannot seize an individual by shooting him dead, which is what happened in this case.”
Hilliard argues that if you follow the border patrol’s argument to its necessary conclusion, “it means that a law enforcement officer is immune to the Constitution when exercising deadly force across the border.
“He could stand on the border and target practice with the kids inside the culvert,” Hilliard warns.
But lawyer Ortega replies that’s not true, and asks how the court should draw the line.
“How far does it extend? Does it extend 40 feet? As far as the bullet can travel? All of Juárez, Mexico? All of (the state of) Chihuahua, Mexico? Where does the line end?”
Backed by the federal government, he suggests that a ruling in favor of the Hernández family would mean foreigners could sue over a drone attack.
Now it’s up to the Supreme Court to decide where to draw the line.