Collective Bargaining Bill May Be Unconstitutional

Three Wisconsin unions have filed a lawsuit against Governor Scott Walker and the state to declare the collective bargaining bill unconstitutional. Their argument is that the bill "infringes on the constitutionally protected rights to equal protection and freedom of speech and association." This is the argument you sometimes hear people ask, but are workers' rights really rights or are they just privileges?

The lawsuit's argument regarding equal protection is an important and relevant argument, but it's not the meat of the workers' rights arguments. The reason they believe their right to equal protection was infringed is because only certain public workers were singled out in the bill. Had every public worker in the state been included, there would be no infringement of equal protection. The right of freedom of speech and association covers all public workers, and would be relevant no matter how many workers were included in the bill.

I and many others believe that the right to collectively bargain is implied in the freedom of speech and association defined in the U.S. Constitution. These freedoms are broadly written to encompass ideas that the writers knew they wouldn't think of at the time, but yet should be protected. So, currently the right to collectively bargain is somewhat weakly defined.

We all know what the freedom of speech is, it's the freedom to say nearly anything. The freedom of association is the right to join others and collectively express, promote, pursue and defend common interests. This right isn't explicitly defined in the First Amendment, but the U.S. Supreme Court ruled in NAACP v. Alabama that the freedom is an essential part of the freedom of speech because, in many cases, people can engage in effective speech only when they join with others. Also, the United States worked with the United Nations to develop the Universal Declaration of Human Rights which explicitly defines the freedom of assembly and the right to collectively bargain.

I'm not a lawyer, but during the controversy over the collective bargaining bill I've been looking into how collective bargaining rights are defined in Wisconsin and in the United States. The ability to collectively bargain has been defined through law and the courts throughout our history, as many of the other rights we hold dear. However, I believe this is the first time that a case has been brought before a court regarding collective bargaining rights as a right included in the freedom of speech and association. If I'm not mistaken, this case could make the right to collectively bargain for all much more concrete. So I think that this case is much more important than the other court cases regarding the bill, and it's all the more reason to make sure we have independent thinkers on the Wisconsin Supreme Court such as JoAnne Kloppenberg.