“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” Any right not mentioned in the Constitution must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” While the decision applies directly to abortion rights, the underlying principle could be applied to all rights – including worker rights and environmental rights. No rights of workers are mentioned in the Constitution. Indeed, at the time the Constitution was written and for a long era afterward, workers were defined as “servants,” who had to obey their masters’ will. During their term of service a servant had to abide by the master’s rules and perform whatever tasks the master required. The servant could not quit, since their labor was considered the property of the master. In fact, masters could have servants arrested if they attempted to leave their service early. By the late 1800s the master/servant paradigm become the legal model for all employment relationships in the United States. Unions were defined as illegal “conspiracies in restraint of trade.” Strikes could be halted by arbitrary court injunctions enforced by police and even the military. The Supreme Court systematically declared minimum wage and maximum hour laws unconstitutional. Similarly, there were no rights to protect people from pollution. Factories could – and did – simply dump their chemical wastes into the nearest river without any legal recourse for those they poisoned. The Supreme Court is already at work curtailing worker and union rights; for example, the Janus case eliminated long-established rights of unions on the job. A case accepted for decision by the Supreme Court is poised to gut the ability of the Environmental Protection Agency to restrict greenhouse gas emissions. The Supreme Court doesn’t have to eliminate all worker and environmental rights in one fell swoop. It can simply apply the principle that if such rights didn’t exist in 1789 they don’t exist today – and thereby extinguish all our rights case by case. History bears out the adage that “courts follow the elections.” It is also true that major changes in the courts’ direction are often influenced by popular mobilizations. As legal historian James Gray Pope has pointed out, the Supreme Court’s reversal of precedent to declare the National Labor Relations Act (aka the Wagner Act – “Labor’s Magna Carta”) constitutional came as workers were occupying General Motors factories in Flint. Similarly, the Supreme Court’s decision banning segregated transportation, reversing its 1896 “separate but equal” ruling in Plessy v. Ferguson, came directly following the Montgomery Bus Boycott. To paraphrase another old adage: Eternal vigilance is the price of liberty and the condition of vigilance is a strong heart – and, we might add, a strong movement. |