Forum Post: Let It Bleed: Libertarianism and the Workplace by Chris Bertram

“In the general course of human nature, a power over a man’s subsistence amounts to a power over his will.” —Alexander Hamilton, Federalist 79

Libertarianism is a philosophy of individual freedom. Or so its adherents claim. But with their single-minded defense of the rights of property and contract, libertarians cannot come to grips with the systemic denial of freedom in private regimes of power, particularly the workplace. When they do try to address that unfreedom, as a group of academic libertarians calling themselves “Bleeding Heart Libertarians” have done in recent months, they wind up traveling down one of two paths: Either they give up their exclusive focus on the state and become something like garden-variety liberals or they reveal that they are not the defenders of freedom they claim to be.

That is what we are about to argue, but it is based on months of discussion with the Bleeding Hearts. The conversation was kicked off by the critique one of us—Corey Robin—offered of libertarian Julian Sanchez’s presignation letter to Cato, in which Sanchez inadvertently revealed the reality of workplace coercion. Jessica Flanigan, a Bleeding Heart, responded twice to Robin. Then one of us—Chris Bertram—responded to Flanigan. Since then, the Bleeding Hearts have offered a series of responses to Chris and Corey.

Life at Work To understand the limitations of these Bleeding Hearts, we have to understand how little freedom workers enjoy at work. Unfreedom in the workplace can be broken down into three categories.

1. Abridgments of freedom inside the workplace On pain of being fired, workers in most parts of the United States can be commanded to pee or forbidden to pee. They can be watched on camera by their boss while they pee. They can be forbidden to wear what they want, say what they want (and at what decibel), and associate with whom they want. They can be punished for doing or not doing any of these things—punished legally or illegally (as many as 1 in 17 workers who try to join a union is illegally fired or suspended). But what’s remarkable is just how many of these punishments are legal, and even when they’re illegal, how toothless the law can be. Outside the usual protections (against race and gender discrimination, for example), employees can be fired for good reasons, bad reasons, or no reason at all. They can be fired for donating a kidney to their boss (fired by the same boss, that is), refusing to have their person and effects searched, calling the boss a “cheapskate” in a personal letter, and more. They have few rights on the job—certainly none of the First, Fourth, Fifth, Sixth, and Seventh Amendment liberties that constitute the bare minimum of a free society; thus, no free speech or assembly, no due process, no right to a fair hearing before a panel of their peers—and what rights they do have employers will fight tooth and nail to make sure aren’t made known to them or will simply require them to waive as a condition of employment. Outside the prison or the military—which actually provide, at least on paper, some guarantee of due process—it’s difficult to conceive of a less free institution for adults than the average workplace.

2. Abridgements of freedom outside the workplace In addition to abridging freedoms on the job, employers abridge their employees’ freedoms off the job. Employers invade employees’ privacy, demanding that they hand over passwords to their Facebook accounts, and fire them for resisting such invasions. Employers secretly film their employees at home. Workers are fired for supporting the wrong political candidates (“work for John Kerry or work for me”), failing to donate to employer-approved candidates, challenging government officials, writing critiques of religion on their personal blogs (IBM instructs employees to “show proper consideration…for topics that may be considered objectionable or inflammatory—such as politics and religion”), carrying on extramarital affairs, participating in group sex at home, cross-dressing, and more. Workers are punished for smoking or drinking in the privacy of their own homes. (How many nanny states have tried that?) They can be fired for merely thinking about having an abortion, for reporting information that might have averted the Challenger disaster, for being raped by an estranged husband. Again, this is all legal in many states, and in the states where it is illegal, the laws are often weak.

3. Use of sanctions inside the workplace as a supplement to—or substitute for—political repression by the state While employers often abridge workers’ liberty off the job, at certain moments, those abridgments assume a larger function for the state. Particularly in a liberal state constrained by constitutional protections such as the First Amendment, the instruments of coercion can be outsourced to—or shared with—the private sector. During the McCarthy period, for example, fewer than 200 men and women went to jail for their political beliefs, but as many as 40% of American workers—in both the public and private sectors—were investigated (and a smaller percentage punished) for their beliefs.

In his magisterial history of Reconstruction, W.E.B. DuBois noted that “the decisive influence” in suppressing the political agency of ex-slaves after the Civil War “was the systematic and overwhelming economic pressure” to which they were subjected. Though mindful of the tremendous violence, public and private, visited upon African Americans, DuBois also saw that much of the repression occurred in and through the workplace.

Negroes who wanted work must not dabble in politics. Negroes who wanted to increase their income must not agitate the Negro problem. Positions of influence were only open to those Negroes who were certified as being “safe and sane,” and their careers were closely scrutinized and passed upon. From 1880 onward, in order to earn a living, the American Negro was compelled to give up his political power.

What makes the private sector, especially the workplace, such an attractive instrument of repression is precisely that it can administer punishments without being subject to the constraints of the Bill of Rights. It is an archipelago of private governments, in which employers are free to do precisely what the state is forbidden to do: punish without process. Far from providing a check against the state, the private sector can easily become an adjutant of the state. Not through some process of liberal corporatism but simply because employers often share the goals of state officials and are better positioned to act upon them.

All of these examples come from the United States, where “at will” employment—defended by virtually all libertarians, including the Bleeding Hearts—is the legal norm. Yet conservatives elsewhere campaign for similar laws. For example, in the United Kingdom, where workers enjoy some statutory protections for unfair dismissal, a venture-capitalist, Adam Beecroft, recently produced a report for the Conservative Party arguing for a US-style firing regime. Should the Conservatives be able to govern on their own, we can expect at-will to pass into law. The UK has already moved much further in this direction than comparable European countries, with predictable results in the workplace, as the journalist Owen Jones has recently documented. What’s next? Forcing reporters to dress up as Harry Potter at a news conference? Oops. Too late.

Rest of the article here.

http://crookedtimber.org/2012/07/01/let-it-bleed-libertarianism-and-the-workplace/