Libertarian Corporatism is Not an Oxymoron

Brishen Rogers addresses what such a future architecture of labor rights might look like, taking account of the contemporary labor market conditions and new kinds of workers’ movements that Andrias describes—and taking account, as well, of the inescapable fact that the relationship among the state, unions, and individual workers is devilishly complicated “in a constitutional culture that prizes individual liberty.” In place of today’s archaic and dysfunctional labor law framework, Rogers proposes a model he calls “libertarian corporatism.” In place of our weak and outmoded forms of decentralized collective bargaining, Rogers’s scheme would encourage, or even mandate, collective bargaining at the occupational or sectoral level. But, also in contrast to today, it would leave workers nearly unfettered choice as to bargaining representatives and thereby draw the sting out of the Supreme Court’s recent neo-Lochnerian attacks on what remains of compulsory cost-sharing under the present labor law regime. Finally, Rogers’s model taps into the libertarian strain of contemporary Court doctrine, by removing certain core legal constraints on workers’ concerted action, as a kind of libertarian quid pro quo for eliminating bargaining unit exclusivity and compulsion. No matter that it proceeds in some “conservative” laissez-faire directions, the model would vastly enhance workers’ economic and political clout, and so its real-world salience depends on politics. If the nascent movements that Andrias describes gain steam in the context of a broader progressive revival, then perhaps this may prove a first sketch of some of labor’s planks in a future legislative anti-oligarchy constitution.