Lee's magnificent book interweaves the histories of the civil rights and right-to-work movements. The book documents how both pursued what Lee terms a workplace constitution: the idea that workers have constitutional rights that they may exercise against unions and employers. Across five decades, workers, businessmen, union leaders, civil rights activists, and government lawyers challenged the scope and boundaries of the state action doctrine. By focusing on constitutional interpretation by administrative agencies, The Workplace Constitution revises Risa Goluboff's argument that the Cold War shut down civil rights challenges to the state action doctrine. By analyzing the dialectic between liberal and conservative advocacy for the workplace constitution, Lee reveals that the workplace constitution held the potential both to advance and to retard civil rights and unionism. Lee leads readers along the twisted legal pathways that determined the fate of this ideal and, along the way, introduces us to a host of intriguing and heretofore unknown historical actors. The complexity of this journey requires the reader's dedication, but Lee's considerable narrative skill and beautiful writing makes the trip a rewarding one.

For black workers, the 1935 National Labor Relations Act and 1934 Railway Labor Act compounded the injustice caused by racism in the labor movement. “Exclusive representation” under both statutes potentially gave white unions the right to represent African Americans excluded from membership. Some black leaders wanted to preserve the autonomy of the labor movement from state intervention, and fight within it for racial justice. In the 1940s and 1950s, a new generation of civil rights leaders took a different path. They argued that the equal protection guarantee of the Fifth Amendment gave rise to unions’ duties of fair representation and equal membership. The passage of the Civil Rights Act of 1964 prompted civil rights advocates to strategize how Title VII should reshape their efforts to realize race equality within unions and other entities of mixed private–public status.

Civil rights lawyers consistently found the National Labor Relations Board and other administrative agencies more amenable than federal courts to the liberal workplace constitution. A particularly fascinating chapter chronicles the successful efforts of black nationalists to convince the Federal Communications Commission to impose antidiscrimination duties on licensees, including statistical representation of minority groups in employment as well as diversity in programming. To facilitate readers’ understanding, Lee classifies different theories of state action advanced by civil rights and government attorneys. These ranged from a sanctioning theory, finding state action in an agency's permission of a licensee's discrimination; to a sufficient contacts theory, examining the degree, rather than the quality, of interaction between the agency and discriminating agency; to an encouragement theory. By the 1980s, however, liberals began to rethink the entire premise of a workplace constitution because of legal arguments made by the New Right that, as Lee illustrates, exerted a powerful force against unions.

Lee's account of the conservative workplace constitution shows that freedom of contract survived the New Deal revolution, intact if not untarnished. A descendant of substantive due process—the right to work—brought together elitists, populists, and business groups in litigation campaigns against organized labor across five decades. In 1944, a wealthy film director and radio broadcaster, Cecile De Mille, filed a lawsuit alleging that a mandatory union assessment violated his constitutional rights in his labor, property, and suffrage. In the 1950s, the movement built a popular base by fusing ideals of individual freedom, free market economics, anticommunism, and religion. In the 1970s, right-to-work leaders attracted some African Americans and women to their cause by highlighting union race and sex discrimination, even as New Right activists deployed the workplace constitution as a resource in their battle against affirmative action. Conservatives divided further between advocates of broad theories of state action and strict construction of the Constitution.

For many readers, the biggest historiographic surprise will be that conservatives wielded both constitutional equal protection and Title VII to block and dismantle unions. Lee thereby refines interrelated theses: that racism fueled post-World War II American conservatism and that Title VII offered the best hope for black workers to realize economic security and racial equality, most persuasively advanced by Nancy MacLean. Lee shows that right-to-work advocates forged alliances with civil rights proponents, which shifted in their character at different moments and locations from rhetorical appeals, to an alignment of legal theories, to concrete political allegiances. Although The Workplace Constitution exposes Title VII's secondary role as a deregulatory tool, the book does not argue as strenuously as Douglas Frymer and Nelson Lichtenstein that court-based administration of individual antidiscrimination rights weakened the labor movement. Readers who hunger for a linear progress or declension narrative may be frustrated by Lee's avoidance of a strong conclusion whether the workplace constitution held the hope of salvation or the seeds of destruction for labor. But the book's nuanced exploration demonstrates that the tension between antidiscrimination and association, central to a range of legal debates today, is not inherent, but arises in specific historical contexts when actors put law to particular normative ends.

Lee's comprehensive research and sophisticated analysis upends assumptions in legal history and constitutional theory about the public/private divide and the counterpoint between individual rights and group solidarity. Future research may explore how the history of the United States Constitution in the workplace shaped the informal constitution of the workplace. Did the vesting of the workplace with constitutional as well as statutory valences make a difference to how employees and employers understood the relationship among work, identity, and politics? Did it shape the relationship between and among workers and bosses? The Workplace Constitution will certainly spark further inquiry by students and scholars of civil rights, labor, constitutional law, conservatism, and the administrative state.