Sophia Lee’s excellent book, The Workplace Constitution, explores competing attempts to establish constitutional rights for employees in the United States from the 1930s to the 1980s. Lee uses extensive archival research and clear explication of legal doctrine to tell the story of two movements that many scholars might place in different categories. The first movement comprised workers, union organizers, and activist lawyers who sought to expand civil rights for employees who faced discrimination from both companies and labor organizations. These liberals, as Lee labels them, often disagreed on legal strategy and frequently worked against each other. In Lee’s story the proponents of racial equality in the workplace range from Charles Hamilton Houston of the NAACP to Howard Glickstein of the Justice Department. The second movement included some workers, employers, and entertainment figures who supported right to work measures that allowed employees to opt out of union dues and union activities. In Lee’s account, the right to work activists range from Cecil B. DeMille, the filmmaker, to Sylvester Petro, a lawyer for the National Right to Work Legal Foundation. These conservatives, as Lee describes them, also divided over legal doctrine and often found themselves opposing people who had similar political goals. Lee’s careful reconstruction of the twists and turns of these two seemingly disparate groups shows how the liberals and the conservatives ended up, at times, on the same side of a legal case.

Lee explains that the same constitutional concept that internally divided conservatives and liberals also brought together elements of both sides in unlikely alliances: the state action doctrine. Since many believed that the Constitution only protected the rights of people subject to government action, some civil rights proponents and right to work supporters made legal claims to bring the activities of companies and unions within the legal definition of state action. Some civil rights activists believed that union racial discrimination fell within the realm of state activity, while right to work lawyers claimed that the same doctrine protected individual employees from paying compulsory fees to labor organizations that those employees might not support. At times both liberals and conservatives remained internally united on expanding the reach of the courts and the state into the workplace, but within both camps—those supporting civil rights and those advocating a right to work—the concept of state action also divided political allies. In the 1980s, for example, Lee explains that William Rehnquist and other conservatives had a prior commitment to judicial restraint that put them on the other side of the legal argument vigorously made by their possible allies within the right to work movement. Lee’s exploration of the influence of this legal idea leads her to make two additional points. First, Lee shows that much of the legal battle over employee rights took place within administrative agencies as well as in the courts. Second, Lee demonstrates how political movements faced constraints in what they might argue from legal precedent and existing (if temporary) judicial consensus on the reach of the government. Interpretations of the state action doctrine inside administrative agencies shaped the fight over constitutional rights in the workplace.

Lee’s thoughtful evaluation of archival evidence and legal argument unearths several key moments in the fight over constitutional rights in the workplace that took place within administrative agencies. In Lee’s second chapter, for example, she explores an early 1940s National Labor Relations Board case involving a segregated tobacco packing plant in Richmond, Virginia, that also had separate AFL locals for African-American and white employees. Lawyers for both a CIO union and the NAACP urged the labor board to rule against the division of workers by race. Yet those lawyers did not make a constitutional claim. Even though neither legal brief mentioned a constitutional basis to rule against against segregation, the labor agency’s trial examiner, Frank Bloom, recommended to the labor board that the Constitution barred the AFL union from racially separating their members. Lee notes the importance of Bloom’s internal agency report: “Bloom’s broad theory of state action, coupled with his willingness to use the Constitution to restrain the NLRB’s authority, opened up a new arena for advocating the liberal workplace Constitution: administrative agencies” (47). Lee needed both extensive archival research and a sharp sense of the context of legal argument in the 1940s to make her point about Bloom’s recommendation. Lee found Bloom’s report in the records of the labor board at the National Archives. She assessed that internal agency report against her knowledge of the typical basis of legal arguments for integration in the 1940s and the usual forums where lawyers made claims about civil rights in those years. Lee’s reconstruction of turning points in the fight over constitutional rights for employees supports her larger argument about the parameters of that struggle. Workers, lawyers, government attorneys, and political activists all sought to achieve their agendas through legal cases before administrative agencies.

The Workplace Constitution serves as a promising model for researching other battles in twentieth-century America at the intersection of law, politics, and the economy. Lee’s book will be eagerly read by labor historians and legal historians, and her compelling analysis should also interest historians of capitalism and scholars of political economy. Following Lee’s approach, archival research and broad reading can uncover how individuals formed groups to achieve their goals through collective action. Ideas (in Lee’s case, legal and constitutional ideas) shaped the strategy of both conservative and liberal groups, but those ideas had force when someone deployed a legal claim in a concrete institutional setting (in Lee’s case, mostly administrative agencies). Lee explains the particular outcome of the fight over constitutional rights in the workplace, an outcome that many will find dispiriting. Yet Lee also implies that individuals—and groups—can change the law. As Lee notes, many individuals joined together to make arguments outside the mainstream of accepted opinion at the time. Eventually, a few advocates of crazy ideas convinced union organizers, government officials, and federal judges, and those unusual claims became legal precedent. Although Lee ends her book in the 1980s, the struggle over constitutional rights in the workplace continues today. The Workplace Constitution provides a solid background to current developments and suggests a method to explore the past and present of law, the state, and the economy.