This post originally appeared at the Legislation Law Prof Blog

Yesterday’s post sought to understand why Scott Walker might have rebranded “right to work” as “freedom to work.” Among other things, his move makes one wonder if conservatives might be concerned that some Americans could (mis)understand “right to work” to actually mean what it says. What if people believed they should have a real right to work?

It isn’t entirely inconceivable. The notion that people should have a right to work has a long history, and has emerged from time to time in policy proposals. Once in a long while, politicians have even sought to act on the proposals. Today, the idea remains very much alive, and could even have a natural constituency.

One early proposal for a right to work came in France, in 1839. Louis Blanc, a Parisian journalist, wrote a series of articles that would be collected and published in 1840 as The Organization of Labor (l’Organisation du Travail). Blanc was a critic of social conditions, and believed that the market would never provide jobs sufficient to meet the needs of the poor. His vision? As he wrote, “ASSURE the poor man work.”

 

Blanc proposed to do this by having the state set up a system of “social workshops” in various branches of industry. The government would begin by regulating these closely, including the scale of employment; but after a few years, Blanc believed, the workshops would become self-sustaining voluntary associations.

In the wake of the Revolution of 1848, Blanc became a member of the provisional government. This provided a chance to realize his vision. The government published a decree announcing it would bind itself “to guarantee the existence of the workman by labor,” and to “guarantee labor to all citizens.”

The workshop system began to be set up, and workers were recruited to help build public infrastructure. Yet ultimately the system neither received the full support of the government, nor delivered on the promises of guaranteeing work to all citizens. Blanc fell out of favor both with the poor and the National Assembly, and was forced into exile.

Although his experiment had failed, Blanc’s ideas lived on, and spread. By 1911, an English version of his proposal had been published in the United States.

During the Great Depression, President Franklin Delano Roosevelt began to develop the ideas that would lead him to suggest Americans have a right to work. In his 1944 state of the union address, he argued that during the course of the Depression and the Second World War, Americans “have accepted, so to speak, a second Bill of Rights.”  He put two rights at the top of the list:

• The right to a useful and remunerative job in the industries or shops or farms or mines of the nation;
• The right to earn enough to provide adequate food and clothing and recreation

Roosevelt died the following year; his bill of economic and social rights was never adopted as part of our written constitution. The work relief programs of the New Deal were neither imagined as, nor converted into, ongoing social workshops. And although the Humphrey-Hawkins Full Employment Act authorized the creation of a “reservoir of public employment” as a response to high unemployment during the 1970s, such a reservoir has never been established.

Nevertheless, FDR’s vision remains alive in contemporary political debates, and the American policy imagination. In a 2004 book, Cass Sunstein described the Second Bill of Rights as “FDR’s Unfinished Revolution,” and argued that we need it now more than ever. When Sunstein was nominated by President Obama as a top advisor, conservatives seized on this as a reason to oppose his confirmation. Glenn Beck, master of the paranoid style, even cited the Second Bill of Rights when he named Sunstein “the most dangerous man in America.”

So the idea of a real right to work is still with us. In fact, just a few weeks ago it was proposed by none other than the President of the United States.

[Spoiler alert: if you haven’t yet binged your way through the first two seasons of House of Cards, consider doing so before reading on. Or you can just catch up on the plot here.]

The president in question, of course, is Frank Underwood, not Barack Obama. In the latest season of House of Cards, Underwood confronts an unemployment crisis by proposing a radical work-guarantee program. (This isn’t the first time the policy has played a leading role: Kevin Kline created such a program when he played POTUS in the 1993 film Dave.)

The fictional political world imagined by House of Cards is incredibly cynical, and some reviewers have found its policy-focused plotlines to be tedious. But its creators have tried to imagine how a real right to work policy might play out, and are effectively screen-testing the idea in front of millions of Americans. They have prompted commentators to debate whether it could happen. Does the political deals the show depicts defy political logic? In any case, would the policy be legal? Is it doable in the real world? Is it just plain bonkers?

Meanwhile, out in the real world, scholars have laid out proposals for how a job guarantee program might work. Bill Quigley, a professor at Loyola Law School in New Orleans, has proposed a constitutional right to a job at a living wage. Pavlina Tcherneva, a professor of economics at Bard College, has argued (here and here, and in this video) for creating jobs in the social enterprise sector, rather than through direct public employment. Her proposal is informed by prior research finding that after the 2001 economic crisis in Argentina, poor women far preferred the government’s guaranteed jobs program to the cash transfer policy that replaced it.

What might Americans think of a right to work law that lived up to its name? You might find potential supporters in unexpected places. In his book, Sunstein notes that a 1998 poll found 64% of Texans agreed that “the government should see to it that everyone who wants to work can find a job.” Even a majority of self-described conservatives agreed with the statement. (The complete polling data are here.)

Millennials could be a natural constituency for a real right to work law. The effective unemployment rate among Millennials (18-29 years old) hit 16% as recently as 2013. Since then the situation has gotten a bit better, but the unemployment rate for younger Millennials (16-24 years old) is still more than double the overall national rate.

A Pew study has found that Millennials are more likely than older generations to say they support an activist government. But the parents of Millennials might also see the value of a jobs program, since currently they are the ones doling out financial support to their kids, a pattern that is cutting into their retirement savings.

Whether or not politicians will propose a real right to work, and whether it could gain public support, remains to be seen. For the time being, “right to work” still refers to policies that dismantle the membership and collective bargaining models that labor unions and employers have relied on for decades. In Part 3, we’ll look at policy ideas that unions and legislators might pursue now that “right to work” is law in half of the states.