First, I would like to offer my thanks to Lance Compa, Richard McIntyre, and Gay Seidman for their thoughtful responses to my essay.Footnote 1 One could not find three more accomplished scholars with whom to engage in this discussion. Each in their own way has sharpened our thinking about the relationship of labor rights to human rights—Compa through a lifetime of inspiring organizing and writing, Seidman through her eloquent defense of human rights-based labor activism, Beyond the Boycott: Labor Rights, Human Rights and Transnational Activism, and McIntyre through his sharp interrogation of this activism in Are Worker Rights Human Rights? Not only do they bring well-honed critiques to bear in discussing my argument, they are generous and fair-minded. I'm grateful to them for prodding me to clarify my thinking.
Let me begin with Ric McIntyre's response. I am happy to find that McIntyre agrees with the thrust of my essay. In some ways, he presented my argument more effectively than I did myself. His commentary adds context to my essay in three vital ways. First, he explores the intellectual underpinnings of a critique of rights-based politics, invoking the thought of Burke, Bentham, and Marx, Jeremy Waldron, Michael Ignatieff, and Hannah Arendt. This is welcome. At the same time, he explains better than I did the historical origins of the international human rights framework and its adoption by labor rights advocates. No doubt he is right to assert that the adoption of the rights argument by the antisweatshop and living-wage movements was at least as influential in promoting the workers'-rights-are-human-rights approach as the scholarly work I cited. Finally, he provides a nuanced discussion of the strengths and weaknesses of the human rights approach in the transnational and international spheres.
McIntyre disagrees with my assertion that the human rights approach is more promising on the international or transnational level than it is in the domestic context, particularly in the United States. But reading his smart discussion of the International Labor Organization (ILO) and the Workers' Rights Consortium, I'm hard pressed to find a point of disagreement with him regarding the international scene. I share his views of the strengths and weaknesses of the human rights approach outside the United States. So our differences really come down to his assessment of the efficacy of that approach within this country and to his assertion that it is “likely that internationally defined rights could be useful in arguing for economic democracy domestically.” I don't share this view.
In fact, I would argue that internationally defined rights are decidedly limited tools when it comes to advancing political causes in the United States. True, they function well to fortify the already converted and to give them the sense that while they might not have the power to advance their vision here, they have many right-thinking allies around the world. We shouldn't gainsay this function because long-struggling movements need all the fortification they can get. But we shouldn't confuse this with an effective political strategy of persuasion. Historically, internationally defined rights have not persuaded American political actors to do very much, and I think it is unrealistic to believe that they can be used to advance something as challenging as “economic democracy” here. There is a reason why Martin Luther King Jr. did not cite the UN Declaration of Human Rights from the steps of the Lincoln Memorial in 1963, even though he knew it well. There is a reason why he instead mentioned the Constitution, the Declaration of Independence, and the Emancipation Proclamation and why he chose to quote Jefferson on “self-evident” truths. King's strategy tells us a lot about how to frame effective rights-based arguments in the United States. To the extent that those arguments are legitimized by reference to international or transnational conventions, they become vulnerable to those who would characterize them as alien or “un-American.” We can rail against American parochialism if we choose, but doing so is unlikely to accomplish much. Indeed, it amounts to the kind of “conversation stopper” that McIntyre and I both agree should be avoided. Instead, what is required is “engaging in the hard work necessary to convince people of their common interest and to build collective power,” as McIntyre says. I would simply add that appeals to internationally defined rights are not likely to help much with this hard work.
Gay Seidman's response is persuasive on many levels. When I was first asked by the editors of this journal to contribute an essay on the limits of rights discourse, I hesitated in part because I did not feel knowledgeable enough about the international scene and the creative uses to which human rights arguments have been put to protect workers' rights in other nations. My essay obviously focused on the United States and made an argument that applies mainly to the American context. Seidman is right to remind me that transnational labor activists “have found repeatedly that deploying a human rights discourse has allowed them to attract international attention where a more traditional rhetoric of union solidarity might have gone unnoticed.”
In much of the world, as Seidman also points out, forming a union remains a dangerous undertaking and working conditions remain desperately exploitative. I accept Seidman's argument that the language of human rights can “make visible the brutal reality of production” in those countries where labor conditions are worst. In such settings, human rights arguments are absolutely necessary.
I am uncertain, though, about how effective human rights arguments are beyond helping mobilize world opinion against the most egregious abuses. Seidman uses the example of Guatemala to point out the efficacy of the human rights approach. By directing world attention toward labor abuses in Guatemala, where “wages were unpaid, workers were slapped and abused, union activists and their families were assaulted and raped,” activists won significant improvements, she says. She is right, of course. But the Guatemalan case also illustrates the limitations of the human rights framework. Consider Guatemalan apparel factories, which produce largely for the US market, and where rights activists won significant reforms. Arguably, the main threat Guatemalan textile and garment workers face today is no longer the brutal repression of their unions, but rather the disappearance of their jobs and the downward pressure on their earnings. Since the phase-out of the Multi-Fiber Arrangement (MFA) at the end of 2004, the Guatemalan textile industry has been hemorrhaging jobs, losing them to low-wage Asian countries. In 2005 alone, by one estimate, the country shed 38,000 apparel jobs. The total value of Guatemalan imports to the all-important US market has dropped by thirty-nine percent from MFA-era levels.Footnote 2
How can appeals to human rights help workers cope with the realities of the global economy, as “restless capital” moves about the world “looking for cheaper production sites”? Furthermore, can we rely so heavily on arguments based on notions of freedom and rights without unintentionally legitimizing capital's freedom to move? This is not an argument for abandoning human rights arguments in the defense of workers around the world. It is, however, an argument for not leaning so heavily on those arguments going forward, recognizing that they furnish a poor basis for critiquing neoliberalism.
Lance Compa and I debated these issues six years ago in the pages of Dissent. I thought then that the Employee Free Choice Act (EFCA) had been poorly framed, structured in ways that overdetermined its fate. But I hedged my criticism. After all, I thought, I'm a historian, not a legislative strategist. I saw EFCA as an improvement on the status quo, believed that the nation needed a new labor law, and thought it was not my place to critique labor's strategy. All I said about the act at that time was that since it had “no chance of passage any time soon [since Republicans controlled the House of Representatives], perhaps it would not hurt to rethink its current framing around the notion of ‘free choice.’” I went on to suggest that “labor's present-day rights talk unintentionally reinforces aspects of the right-to-work argument” by making “free choice” labor's central appeal. I pointed out that labor needed to take the right-to-work argument seriously, and not dismiss it, and suggested labor might do better if it made democracy rather than free choice the keynote of its efforts.Footnote 3
That never happened. Not only did EFCA fail; we now see right-to-work legislation nearing enactment in a half-dozen states. If labor had taken a different approach, would it be in a different position today? No one can say. But at the very least we can conclude that labor's reliance on the “free choice” framework not only failed to win votes, it failed to energize labor's rank and file.
Yes, as Compa points out, labor strategists belatedly downplayed “fundamental rights in favor of economic themes” in their effort to round up votes for EFCA. But this was in large measure because the rights formulation had gained so little traction. He further believes that by gravitating toward economic arguments, “EFCA supporters replicated the original sin of the National Labor Relations Act.” The NLRA grounded collective bargaining rights “in an economic foundation based on the Commerce Clause of the Constitution,” he says, rather than rooting them in more fundamental rights of free association, as he might have done had he drafted the law. “We'll never know for sure whether an NLRA grounded instead in First Amendment rights of association or Thirteenth Amendment strictures on servitude would have gotten past the Supreme Court,” Compa writes. But does anyone really think that a court that narrowly upheld the Wagner Act on Commerce Clause grounds (5–4) would have sustained a union-promoting law based on “Thirteenth Amendment strictures on servitude”—particularly when the only servitude subject to strictures in the Thirteenth Amendment is “involuntary servitude”?
No, the NLRA was not conceived in “original sin.” Rather, its framers clearly understood their objective and the cultural, legal, and political context within which they sought to achieve it. They wanted to make unions into powerful vehicles for workers' collective voice in the workplace, commerce-regulating agencies in their own right that could counterbalance the overwhelming power of employers, and to do this in a culture in which solidarity was difficult to sustain, in an economy where markets were lightly regulated, and in a legal system that prized freedom of contract. No, the ground on which they erected their law was wisely chosen. Had they opted to make the First Amendment their basis, they would have been drawn relentlessly by the logic of free association into recognizing rival unions in the same workplace, affirming the “right to work,” and a host of other “freedoms” that would have weakened workers' collective voice. The problem is not that the Wagner Act was ill founded; it is that it protected too few workers and the economic, political, legal, technological, cultural, and global context in which it was conceived no longer exists. This is why we need a new law.
Finally, Compa points to recent events in Wisconsin as evidence that “a rights argument can get good traction in disputes about labor policy.” I read Wisconsin differently. What brought out protesters there (and around the country) was less a defense of rights than an assertion of democracy against arrogant power. Offended by the dishonesty of Governor Scott Walker's claim that undermining collective bargaining was a necessary budget-balancing measure even though unions were already offering economic concessions, and inspired by the victorious Egyptian democracy movement, protesters turned out to challenge “Hosni Walker.” Their most popular chant did not refer to human rights. Rather they shouted, “This is what democracy looks like.” It is precisely this phrase that the labor movement should take to heart in its future campaigns. Doing so does not necessitate a rejection of the human rights approach, but it does demand that we grasp its obvious limitations. Hopefully, this discussion constitutes one small step in that direction.
