http://crookedtimber.org/2012/07/01/let-it-bleed-libertarianism-and-the-workplace/
“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.
Libertarians at Work
Despite this systemic abridgment and denial of freedom in the workplace, libertarians have a difficult time coming to terms with it. Which is ironic given that Robert Nozick cited the following example in his classic article “Coercion”—on page 2 no less—as so obvious an instance of coercion as to scarcely require explanation or elaboration: “You threaten to get me fired from my job if I do A, and I refrain from doing A because of this threat….I was coerced into not doing A.” (In fact, the workplace proved to be an abiding theme in Nozick’s treatment of coercion: almost the entirety of his discussion of the distinction between threats and warnings is focused on the example of a plant owner claiming that a yes vote in a union election would result in the factory shutting down.)
It’s also ironic given libertarians’ understanding of their project. Libertarians claim that freedom is their core value and that it’s maximized when the state refrains from interfering in the private choices of individuals. They also believe, however—as every sensible person should—that individual freedom can be curtailed by private action. In fact, the idea that private action can diminish individual freedom is central to their justification for the state, which is that some state coercion is required to stop people from dominating, enslaving, and generally harming others. We all do better on the metric of freedom, libertarians agree, if the state makes and enforces “traffic rules” for private persons.
Given this awareness that freedom can be diminished by private action, one might think libertarians would reject a state of affairs in which large portions of the population endure daily subjection to the commands of others. Especially when those issuing orders give their subjects detailed instructions on how to live their lives and are in a position to threaten them with severe negative consequences should they disobey. But one would be wrong.
In his response to Flanigan, Chris raised the question of sexual harassment—“What’s wrong with an employer saying to an employee (who needs the job, has bills to pay and kids to feed): ‘If you want to keep your job, you’d better let me fuck you?’”—because he assumed it to be a paradigmatic case of wrongful coercion, the wrongness of which was not in dispute. As it turned out, for some libertarians it was in dispute. The Bleeding Hearts, to their credit, did not dispute its wrongness. But that defenders of so obvious an instance of coercion emerged from the woodwork is illustrative of the fact that libertarianism has some difficulties in this area.
But some of the Bleeding Hearts even have their doubts about whether sexual harassment—and, more important, the larger structure of workplace command and control, obedience and submission, of which it is a part—constitute coercion. Jason Brennan says, “There’s an interesting debate to be had about whether [‘Fuck me or you’re fired’] counts as coercive, and I’ve seen libertarians go either way.” As he proceeds, it becomes clear which way Brennan goes: the wrongness of sexual harassment lies not in its coerciveness (Brennan suggests it’s not coercive) but, well, elsewhere.
Matt Zwolinski acknowledges that employer power is ripe for abuse (though he’s not sure he’d call it coercion) and says that he thinks Chris and Corey are right that libertarianism tends to be indifferent to (if not apologetic toward) private modes of power. But he also insists that “employment relationships are not the best way to illustrate” that lacuna in libertarianism.
And it’s clear why. For starters, Zwolinski believes that “in most cases, employers don’t actually wield as much power over their employees as they might seem to.” (What theory of power, we wonder, does Zwolinksi hold if it’s possible for employers simultaneously not to have much of it and yet be “in a position to threaten their employees with negative (sometimes severely negative) consequences unless they do what they’re told?” And why, if what Zwolinski says is true, did 2/3 of government inspectors charged with overseeing the health and safety of America’s workers report “observing worker fear of disciplinary action for reporting an injury or illness?” Not to mention all the other instances of employer power cited above?)
More important, Zwolinski’s not much inclined to impose any limits on the power of employers to tell their employees what to do and to threaten employees with punishment for not doing it. Not just because he thinks the state is not particularly adept at imposing such restrictions in an intelligent or effective way but also because
it’s important for employers to have a certain range of freedom to set terms of employment as they wish. Sometimes, they use this freedom in ways that we think are admirable—designing innovative and effective compensation programs for their workers, or hiring employees from traditionally underrepresented groups. Other times they use it in ways we find objectionable— telling their workers to put out or be fired. In between lies a vast gray area. Is it a good use of their liberty for employers to institute a dress code at work? A speech code? To only hire Catholics, or large breasted women? Libertarians believe that such questions are generally not ones that government has the competency or authority to decide, and that they should be left to individual employers to decide as they see fit.
And while Flanigan acknowledges that these workplace exercises of power, backed up by the threat of firing, are coercive, she concludes that unless such exercises of power “radically change a person’s job description” they are not “impermissibly coercive.”
On the flip side, libertarians often have little problem in finding the activities of unions to be coercive. Take a picket line. According to Jacob Levy:
Unions—their leadership, their membership, their supporters—are capable of significant bullying that easily spills into immoral coercion against outsiders, nonmembers, and dissenters; the charge of “scab” is often an accusation of punishable treason against a cause that the accused never signed up for.
(In fairness to Levy—and to his credit—he also writes this: “Unions have been and continue to be absolutely indispensable for the mitigation of workplace power imbalances between managers and employees; they provide due process protections, protection against favoritism and nepotism and retaliation and harassment sexual and otherwise, protection against unjust dismissal and against the countless ways that managers can use the threat of dismissal to gain personal advantage.” And this: “I think the general commitment to human freedom that motivates libertarianism should also motivate concern for these kinds of issues [coercion of workers].” Needless to say, his statements in favor of unions are the outlier in this discussion. None of his more orthodox libertarian critics, moreover, takes issue with his formulation of the “immoral coercion” that is entailed by the use of the word “scab.”)
But Levy is hardly alone in finding the emotional blackmail of a picket line to be coercive. Hayek, for example, wrote that “even so-called ‘peaceful’ picketing in numbers is severely coercive.” Indeed, Hayek thought this mode of blackmail to be the “chief factor” or instrument of union coercion, more powerful and potent than legislation sanctioning the existence of unions in the first place. (This, despite his skepticism of any account of coercion that depends upon people’s internal states of mind.) More generally, Hayek was quite liberal in his use of the word “coercion” and “coercive” in the context of unions. And though the inconsistencies of his account of coercion are legendary, driving even some of his libertarian admirers to distraction, none that we know of has questioned his application of the term to the intimidation of a picket line.
But if running the gauntlet of shouting workers as a condition of employment is coercive—because of the emotional distress (Hayek calls it “organized pressure upon individuals”) it inflicts—how is having to put up with any number of humiliations and indignities in the workplace as a condition of employment not equally coercive? After all, on any libertarian mode of reasoning, no one is forcing the non-striking worker to work, and certainly not at this particular workplace; presumably she can take her labor elsewhere.
In any event, whether or not libertarians are consistent in their understanding of workplace coercion, there is little doubt that they are confused about or indifferent to its presence and reality. Indeed, the ease with which Zwolinski, like Murray Rothbard before him, subsumes “the power” employers “have over their workers” under the category of “the freedom of employers”—a move with a long lineage in the history of both wage and bonded labor—suggests how far we have to go before the Bleeding Hearts establish that theirs is not simply the same old black heart of libertarianism we all know.
Contract, Coercion, and Consent
Bleeding Hearts believe that workplace coercion is not coercion (or at least not impermissible coercion) for two reasons.
First, workers freely consent to work for their employer. Though many libertarians take any voluntary contract, no matter how desperate the circumstances of the worker, as a proxy for consent, most Bleeding Hearts believe that as long as workers have a reasonable alternative to not working—in the form of a universal basic income (UBI)—it cannot be said that their agreement to take a job is coerced. (Though Bleeding Hearts usually defend the UBI as a requirement of justice rather than liberty, they also defend it as a hedge against employer coercion. More recently, John Tomasi has conceded that when economic conditions are such that “workers effectively have no choice but to keep their current job, no matter how nasty” they will be “vulnerable to coercive abuses” of their employers—which is merely an amplified version of Hayek’s position.) Given the presence of a reasonable alternative, workers performing whatever tasks their employer demands are freely consenting to do those tasks. Of the Bleeding Hearts, only Flanigan adds the proviso that those tasks must fall within the boundaries of what she calls the “implicit understanding” of the job description initially consented to.
Second, workers are free to quit any job not to their liking—again, say the Bleeding Hearts, provided they are not bound to keep their job for lack of a reasonable alternative. Assuming, presumably, some kind of tacit consent theory, the Bleeding Hearts conclude that any worker who performs a specific action at the behest of her boss—peeing in a cup, say, while the boss stands outside the stall, or peeing in her pants because she’s not allowed to go to the bathroom—is acting freely.
Let’s assume, for the moment, that the UBI provides a reasonable alternative to not working, making the worker’s decision to work—and stay at work—truly free. What, we might ask, does the worker agree to when she signs a contract? With the exception of Flanigan, the Bleeding Hearts have been silent on this issue, and for good reason.
Outside a unionized workplace or the public sector, what most workers are agreeing to when they sign an employment contract is the alienation of many of their basic rights (speech, privacy, association, and so on) in exchange for pay and benefits. They may think they’re only agreeing to do a specific job, but what they are actually agreeing to do is to obey the commands and orders of their boss. It’s close to a version of Hobbesian contract theory—“The end of obedience is protection”—in which the worker gets money, benefits, and perhaps security in exchange for a radical alienation of her will.
At least the Hobbesian contract specifies this alienation of the will. Few employment contracts do. If they specify anything, it is the performance of labor—and often indeterminate labor at that—in return for a wage. What they don’t specify is the rules of bathroom access, employer prerogatives over speech onsite and offsite, dress codes, and more. That is why many workers are surprised to learn, for example, that they have no freedom of speech or right to privacy on the job: no one—least of all their employer—ever told them. It may also be why, according to the most systematic meta-study of this issue, most Americans believe that “employers should have good reasons [i.e., just cause] for discharging their employees.” Again, no one told them otherwise.
The problem with most employment contracts, then, is twofold: On the one hand, they are highly and necessarily indeterminate. As economic and legal theorists regularly tell us, all contracts are incomplete, but inside the workplace they are especially so. Where Staples’s contract with an insurance company to provide twenty reams of paper on July 2 means only that Staples has to supply that insurance company with twenty reams of paper on July 2, a secretary’s contract with that same insurance company is a sheet of blank paper that gets filled in by her boss only with and over time.
And what does it get filled in with? The secretary learns that she must file papers (but how many per hour? for how many people? according to what system?), answer phones (but what can she say? what can’t she say? how long must each conversation be? can she chew gum while she talks?), greet visitors (wearing what? smiling?), type memos (how fast? on what paper?), keep her desk clean (how many times a week does she dust it? does she keep family photos? what if she’s married to a woman? what if her children are unsightly?), get her boss his coffee (with milk? from Starbuck’s? in a reusable cup that she must wash and dry every night before she goes home?), help her boss do his job (does she buy his presents for his wife and kids? his mistress? does she make sure his shirts get laundered when he’s on a business trip?), and make the office run smoothly (does she plan the holiday party? does she hire strippers? does she make sure there are pretty pictures on the wall?) And once she’s figured all that out, she must then find out whether she can (or must) wear perfume, eyeglasses, miniskirts, earrings, a wedding ring. Whether she can (or must) wear a bra or her hair in a bun, tell (or not tell) her co-workers her salary, address her boss by his first or last name, tell (or not tell) him how she wishes to be addressed, use email after work, and on and on.
The promised performance of any job means that every movement and moment, gesture and statement, of the performer’s day (and increasingly night) is up for grabs. The terms of the contract are inevitably indeterminate—especially in a dynamic economy, where technological innovation means that work routines are revolutionized all the time. Itemizing all these ins and outs in advance would partake of the prolixity of a legal code, to borrow a phrase.
Flanigan’s response to this conundrum is that “where contracts are incomplete, there is usually an implicit or explicit understanding about the nature of a job.” We’re not clear how she knows this to be the case. The evidence of most labor history and labor sociology points in the opposite direction: workers and bosses constantly disagree about the nature of a job. Labor violence in the US, from the 1840s to the 1970s—surpassing Europe in scale and wantonness—is hard to account for without some recognition of these disagreements. But even if it were the case that there’s a shared understanding of work requirements, who decides, on any given issue, whether a specific edict of the boss violates the job description? For the Bleeding Hearts, it’s clear: the boss decides. And if the contract is unclear or doesn’t specify, says Flanigan, and “an employee is surprised to find that her job requires things she did not anticipate”—like fucking the boss—“then of course she should be free to leave the job.”
Thus, the flip side of the indeterminate contract is a rather specific contract: if you want to get paid, obey the boss. Do what you’re told, don’t talk back, and in the event of a disagreement, cede to his will. Though again, that’s almost never stipulated in advance.
Enter, Exit
But what of the freedom to enter and exit the workplace? Unlike most libertarians, many of the Bleeding Hearts accept—again, mostly as a requirement of justice, but also as an antidote to coercion—that for a contract to be freely entered into, and for exit to be a genuine option, workers must have a reasonable alternative to working. Usually, this is framed as providing everyone with a basic income. Any UBI, on this account, would have to be high enough to ensure that no one is forced to take or keep a job.
Let’s say we decided that our freedom threshold would be met by ensuring that someone who didn’t work wouldn’t fall into poverty. The current, rather miserly, poverty line for a single person in the United States is $11,170. Providing a UBI of $11,170 would require taxing roughly 40 percent of current GDP. Tax revenues now consume 20% of GDP, so tax rates would have to double—or we could simply expropriate the top 1%, who command roughly 20% of national income. A UBI guaranteeing the equivalent of the annual minimum wage—$15,080—would require taxing roughly 50% of current GDP.
On either measure—and we should be clear that neither measure in our opinion comes close to providing a reasonable alternative to work—a UBI that provided anything approaching a minimally “reasonable alternative” would require, by American standards, high levels of taxation.
It may be that the Bleeding Hearts disagree with the common libertarian claim that taxation is slavery, but most libertarians do not—certainly not enough to entertain such high levels of taxation. So the Bleeding Hearts should come clean. It’s not good enough to gesture vaguely in the direction of a UBI as a “get out of jail free card” when issues of freedom and consent are raised, without facing up to the question of whether a large enough UBI to make entry and exit genuinely voluntary could be financed with whatever taxes they consider to be just.
But say the Bleeding Hearts were willing to raise taxes for the sake of creating a reasonable alternative to selling one’s labor. Would a UBI, on its own, really constitute that alternative? There’s no doubt that a far heftier UBI—one that allowed a single person to live more than an impoverished existence—would offer a reasonable alternative at the moment of contract. It’s not at all clear, however, that even a robust UBI would constitute a reasonable alternative at the moment of exit, when an employee must consider all the costs (financial and otherwise) of leaving her job and all the sunk costs she’ll never recover. Certainly not enough of an alternative to warrant the claim that staying at a job is a genuinely free decision.
Anyone who has been in a job for a while, who has committed to a mortgage, has children in school and shares her life with a partner, knows that just walking out, with an income stream committed months or years ahead, is a very bad idea unless they have something definite lined up. Indeed, when libertarian Julian Sanchez offered his presignation letter to Cato, he acknowledged that one of the reasons he could even contemplate quitting was that he was “relatively young, and unencumbered by responsibility for a mortgage or kids” and had “fine options”—i.e., comparable and credible work alternatives.
The costs of walking out extend far beyond simple finances. Men and women who have worked in a place for years may be embedded in a network of relations—with co-workers, clients, suppliers, and so on—that constitute a major part of their world. They live in communities where their children attend schools, their partners work, and they have built lives. They may be in a career where entry opportunities are easier when young and have devoted themselves to a profession they will be lucky to get back into if they walk out. Academics, of all people, should be aware of this; employers certainly are.
Simply having the economic means to leave a job, or at least being able survive for a while without a job, cannot address the loss of these goods. It is absurd to think that $11,170/year can compensate for these other costs of leaving a job.
Moreover, there are many smaller coercions and harassments against which a UBI—or any alternative requiring the worker’s exit—would be powerless. If a boss decides to restrict breaks to thirteen minutes instead of fifteen, install cameras outside the bathroom to monitor usage, or make everyone stay three minutes later each day to perform extra paperwork but without extra pay, the threat to leave would be too great to leverage against the grievance. This is why employers often change job expectations and requirements in small increments. In the face of such changes, protest—much less quitting—can seem unreasonable and irrational. The threat of exit would be empty because it could so easily be called as a bluff. Since leaving is a kind of nuclear option, exit is not a universal deterrent. It is too crude an instrument to guarantee that workers can avoid being coerced precisely because it does not, in fact, provide a reasonable alternative in these situations. More fine-grained instruments – like having control over the job itself – are required to resist these petty harassments and mini-coercions.
The larger problem lies in the simplistic notion that the ability to freely enter or exit the workplace disposes of the problem of freedom inside the workplace. On the front end, most libertarians believe that contracts are freedom-preserving: so long as they aren’t coerced or fraudulent, there are no freedom-related objections to be made. But this is a mistake. If someone contracted to be the slave to another person for a year, with no possibility of exit, surely that initial moment of consent does not preserve the slave’s freedom for the remaining 364 days of the year. Even libertarians—at least the sane ones—believe that there are some things you cannot consent to, like slavery, and still retain your freedom. (Up until the 1980s, it was legal in most states in the US for a husband to rape his wife on the grounds that her decision to marry him entailed an agreement to provide him sexual access for the duration of their marriage. That was thought to be a consent, in the famous words of Matthew Hale, that “she [could not] retract,” at least not while she remained in the contract.) In those cases, the contract is freedom canceling, not freedom preserving. And it’s not the desperate conditions—which give rise to the contract—that make it freedom canceling; it’s the contract itself.
On the back end, the limitations of exit as an instrument of freedom can be illustrated by a simple analogy. Suppose Canada were a dictatorship, but the United States welcomed anyone who wished to leave, paid for her ticket and promised her a job. Would that mean that anyone who stayed behind was free? Or think about the implicit contract at the heart of ethnic cleansing: exit and live; stay and die. Now it’s undoubtedly true that exit is better than no exit—ethnic cleansing being better than genocide—in that it limits the reach of coercion. But it’s not true that exit lessens coercion and increases freedom among those who stay. Surely we don’t want to claim that those Jews who refused to flee the pogroms of tsarist Russia were somehow free. To be clear: the point is not that the workplace is as unfree as a dictatorship or the shtetl but that just because an employee can leave doesn’t mean she is free at work.
Law and Voice
Where these thoughts lead is exactly in the opposite direction of libertarianism, including the Bleeding Heart variety: state interference—that is, law and regulation—and economic democracy—that is, more voice—on the job can be liberating.
One way the state can protect workers from coercion and thereby defend their freedom is to interfere with freedom of contract, by making some contracts altogether impossible and by insisting on fair contractual terms for others. This notion, that the preservation of freedom sometimes requires the restriction of freedom, may induce incomprehension or apoplexy in the libertarian—but it should not. After all, libertarians are themselves committed to such a thought in their basic justification for the state: the coercion of the state frees people from the “wild” coercion of lawless individuals. When the law makes me unfree to do a thing that has the happy consequence that nobody can coerce me to do that thing. Nor can I be bargained or negotiated into a position where I have to. In this way the state preserves my freedom when it forbids me from making a contract to enslave myself. Similarly, when states insist, as they do in many jurisdictions outside the United States (Montana is the only the state in America that has such a provision), that employers must show just cause for firing people, it thereby protects them against the kind of encroachments on their freedom that employers are tempted to make.
Another way to protect workers’ freedom is to give them more voice on the job. If entry and exit are emblems of freedom because they express the voluntary will of the individual, why limit those expressions to two moments: when she steps inside the workplace and when she leaves? Would the worker not have more freedom if she had more opportunities to express and act upon her will inside the workplace? Not just more occasions but also more ways to express her will? To say something beyond “I’m staying” or “I’m going”? Imagine if she were free to say, without fear of punishment, “I think you should change your policy of not allowing women to wear skirts?” Or “I’m going to the bathroom” (or, better yet, if she didn’t have to say that at all)? Or “I think you should consider voting for the Green Party”? Would not those greater opportunities for expression (greater in variety and occasion) increase freedom rather than diminish it? It’s true that these expressions of worker freedom require limitations on the employer’s freedom to fire workers. But that, it seems to us, is at the heart of any notion of equal freedom in society: your right to swing your arms always ends just where my nose begins.
These are just some of the considerations that lie at the heart of any defense of unions, regulation of contract and the workplace, and workplace democracy. Whether we call that defense egalitarian liberal, social democratic or democratic socialist, libertarians reject it as an abridgment of economic freedom and, more particularly, the freedom of owners to do what they wish with their property. But the defense of freedom requires such interventions. Private power, left as unrestricted as the Bleeding Hearts would leave it, simply gives too much scope to private empires of tyranny and domination. Taking freedom seriously means confronting the unfreedoms that ordinary people are subject to in their ordinary lives: the Bleeding Hearts, with their fetish of private property and contract, just can’t do that.
“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.
Libertarians at Work
Despite this systemic abridgment and denial of freedom in the workplace, libertarians have a difficult time coming to terms with it. Which is ironic given that Robert Nozick cited the following example in his classic article “Coercion”—on page 2 no less—as so obvious an instance of coercion as to scarcely require explanation or elaboration: “You threaten to get me fired from my job if I do A, and I refrain from doing A because of this threat….I was coerced into not doing A.” (In fact, the workplace proved to be an abiding theme in Nozick’s treatment of coercion: almost the entirety of his discussion of the distinction between threats and warnings is focused on the example of a plant owner claiming that a yes vote in a union election would result in the factory shutting down.)
It’s also ironic given libertarians’ understanding of their project. Libertarians claim that freedom is their core value and that it’s maximized when the state refrains from interfering in the private choices of individuals. They also believe, however—as every sensible person should—that individual freedom can be curtailed by private action. In fact, the idea that private action can diminish individual freedom is central to their justification for the state, which is that some state coercion is required to stop people from dominating, enslaving, and generally harming others. We all do better on the metric of freedom, libertarians agree, if the state makes and enforces “traffic rules” for private persons.
Given this awareness that freedom can be diminished by private action, one might think libertarians would reject a state of affairs in which large portions of the population endure daily subjection to the commands of others. Especially when those issuing orders give their subjects detailed instructions on how to live their lives and are in a position to threaten them with severe negative consequences should they disobey. But one would be wrong.
In his response to Flanigan, Chris raised the question of sexual harassment—“What’s wrong with an employer saying to an employee (who needs the job, has bills to pay and kids to feed): ‘If you want to keep your job, you’d better let me fuck you?’”—because he assumed it to be a paradigmatic case of wrongful coercion, the wrongness of which was not in dispute. As it turned out, for some libertarians it was in dispute. The Bleeding Hearts, to their credit, did not dispute its wrongness. But that defenders of so obvious an instance of coercion emerged from the woodwork is illustrative of the fact that libertarianism has some difficulties in this area.
But some of the Bleeding Hearts even have their doubts about whether sexual harassment—and, more important, the larger structure of workplace command and control, obedience and submission, of which it is a part—constitute coercion. Jason Brennan says, “There’s an interesting debate to be had about whether [‘Fuck me or you’re fired’] counts as coercive, and I’ve seen libertarians go either way.” As he proceeds, it becomes clear which way Brennan goes: the wrongness of sexual harassment lies not in its coerciveness (Brennan suggests it’s not coercive) but, well, elsewhere.
Matt Zwolinski acknowledges that employer power is ripe for abuse (though he’s not sure he’d call it coercion) and says that he thinks Chris and Corey are right that libertarianism tends to be indifferent to (if not apologetic toward) private modes of power. But he also insists that “employment relationships are not the best way to illustrate” that lacuna in libertarianism.
And it’s clear why. For starters, Zwolinski believes that “in most cases, employers don’t actually wield as much power over their employees as they might seem to.” (What theory of power, we wonder, does Zwolinksi hold if it’s possible for employers simultaneously not to have much of it and yet be “in a position to threaten their employees with negative (sometimes severely negative) consequences unless they do what they’re told?” And why, if what Zwolinski says is true, did 2/3 of government inspectors charged with overseeing the health and safety of America’s workers report “observing worker fear of disciplinary action for reporting an injury or illness?” Not to mention all the other instances of employer power cited above?)
More important, Zwolinski’s not much inclined to impose any limits on the power of employers to tell their employees what to do and to threaten employees with punishment for not doing it. Not just because he thinks the state is not particularly adept at imposing such restrictions in an intelligent or effective way but also because
it’s important for employers to have a certain range of freedom to set terms of employment as they wish. Sometimes, they use this freedom in ways that we think are admirable—designing innovative and effective compensation programs for their workers, or hiring employees from traditionally underrepresented groups. Other times they use it in ways we find objectionable— telling their workers to put out or be fired. In between lies a vast gray area. Is it a good use of their liberty for employers to institute a dress code at work? A speech code? To only hire Catholics, or large breasted women? Libertarians believe that such questions are generally not ones that government has the competency or authority to decide, and that they should be left to individual employers to decide as they see fit.
And while Flanigan acknowledges that these workplace exercises of power, backed up by the threat of firing, are coercive, she concludes that unless such exercises of power “radically change a person’s job description” they are not “impermissibly coercive.”
On the flip side, libertarians often have little problem in finding the activities of unions to be coercive. Take a picket line. According to Jacob Levy:
Unions—their leadership, their membership, their supporters—are capable of significant bullying that easily spills into immoral coercion against outsiders, nonmembers, and dissenters; the charge of “scab” is often an accusation of punishable treason against a cause that the accused never signed up for.
(In fairness to Levy—and to his credit—he also writes this: “Unions have been and continue to be absolutely indispensable for the mitigation of workplace power imbalances between managers and employees; they provide due process protections, protection against favoritism and nepotism and retaliation and harassment sexual and otherwise, protection against unjust dismissal and against the countless ways that managers can use the threat of dismissal to gain personal advantage.” And this: “I think the general commitment to human freedom that motivates libertarianism should also motivate concern for these kinds of issues [coercion of workers].” Needless to say, his statements in favor of unions are the outlier in this discussion. None of his more orthodox libertarian critics, moreover, takes issue with his formulation of the “immoral coercion” that is entailed by the use of the word “scab.”)
But Levy is hardly alone in finding the emotional blackmail of a picket line to be coercive. Hayek, for example, wrote that “even so-called ‘peaceful’ picketing in numbers is severely coercive.” Indeed, Hayek thought this mode of blackmail to be the “chief factor” or instrument of union coercion, more powerful and potent than legislation sanctioning the existence of unions in the first place. (This, despite his skepticism of any account of coercion that depends upon people’s internal states of mind.) More generally, Hayek was quite liberal in his use of the word “coercion” and “coercive” in the context of unions. And though the inconsistencies of his account of coercion are legendary, driving even some of his libertarian admirers to distraction, none that we know of has questioned his application of the term to the intimidation of a picket line.
But if running the gauntlet of shouting workers as a condition of employment is coercive—because of the emotional distress (Hayek calls it “organized pressure upon individuals”) it inflicts—how is having to put up with any number of humiliations and indignities in the workplace as a condition of employment not equally coercive? After all, on any libertarian mode of reasoning, no one is forcing the non-striking worker to work, and certainly not at this particular workplace; presumably she can take her labor elsewhere.
In any event, whether or not libertarians are consistent in their understanding of workplace coercion, there is little doubt that they are confused about or indifferent to its presence and reality. Indeed, the ease with which Zwolinski, like Murray Rothbard before him, subsumes “the power” employers “have over their workers” under the category of “the freedom of employers”—a move with a long lineage in the history of both wage and bonded labor—suggests how far we have to go before the Bleeding Hearts establish that theirs is not simply the same old black heart of libertarianism we all know.
Contract, Coercion, and Consent
Bleeding Hearts believe that workplace coercion is not coercion (or at least not impermissible coercion) for two reasons.
First, workers freely consent to work for their employer. Though many libertarians take any voluntary contract, no matter how desperate the circumstances of the worker, as a proxy for consent, most Bleeding Hearts believe that as long as workers have a reasonable alternative to not working—in the form of a universal basic income (UBI)—it cannot be said that their agreement to take a job is coerced. (Though Bleeding Hearts usually defend the UBI as a requirement of justice rather than liberty, they also defend it as a hedge against employer coercion. More recently, John Tomasi has conceded that when economic conditions are such that “workers effectively have no choice but to keep their current job, no matter how nasty” they will be “vulnerable to coercive abuses” of their employers—which is merely an amplified version of Hayek’s position.) Given the presence of a reasonable alternative, workers performing whatever tasks their employer demands are freely consenting to do those tasks. Of the Bleeding Hearts, only Flanigan adds the proviso that those tasks must fall within the boundaries of what she calls the “implicit understanding” of the job description initially consented to.
Second, workers are free to quit any job not to their liking—again, say the Bleeding Hearts, provided they are not bound to keep their job for lack of a reasonable alternative. Assuming, presumably, some kind of tacit consent theory, the Bleeding Hearts conclude that any worker who performs a specific action at the behest of her boss—peeing in a cup, say, while the boss stands outside the stall, or peeing in her pants because she’s not allowed to go to the bathroom—is acting freely.
Let’s assume, for the moment, that the UBI provides a reasonable alternative to not working, making the worker’s decision to work—and stay at work—truly free. What, we might ask, does the worker agree to when she signs a contract? With the exception of Flanigan, the Bleeding Hearts have been silent on this issue, and for good reason.
Outside a unionized workplace or the public sector, what most workers are agreeing to when they sign an employment contract is the alienation of many of their basic rights (speech, privacy, association, and so on) in exchange for pay and benefits. They may think they’re only agreeing to do a specific job, but what they are actually agreeing to do is to obey the commands and orders of their boss. It’s close to a version of Hobbesian contract theory—“The end of obedience is protection”—in which the worker gets money, benefits, and perhaps security in exchange for a radical alienation of her will.
At least the Hobbesian contract specifies this alienation of the will. Few employment contracts do. If they specify anything, it is the performance of labor—and often indeterminate labor at that—in return for a wage. What they don’t specify is the rules of bathroom access, employer prerogatives over speech onsite and offsite, dress codes, and more. That is why many workers are surprised to learn, for example, that they have no freedom of speech or right to privacy on the job: no one—least of all their employer—ever told them. It may also be why, according to the most systematic meta-study of this issue, most Americans believe that “employers should have good reasons [i.e., just cause] for discharging their employees.” Again, no one told them otherwise.
The problem with most employment contracts, then, is twofold: On the one hand, they are highly and necessarily indeterminate. As economic and legal theorists regularly tell us, all contracts are incomplete, but inside the workplace they are especially so. Where Staples’s contract with an insurance company to provide twenty reams of paper on July 2 means only that Staples has to supply that insurance company with twenty reams of paper on July 2, a secretary’s contract with that same insurance company is a sheet of blank paper that gets filled in by her boss only with and over time.
And what does it get filled in with? The secretary learns that she must file papers (but how many per hour? for how many people? according to what system?), answer phones (but what can she say? what can’t she say? how long must each conversation be? can she chew gum while she talks?), greet visitors (wearing what? smiling?), type memos (how fast? on what paper?), keep her desk clean (how many times a week does she dust it? does she keep family photos? what if she’s married to a woman? what if her children are unsightly?), get her boss his coffee (with milk? from Starbuck’s? in a reusable cup that she must wash and dry every night before she goes home?), help her boss do his job (does she buy his presents for his wife and kids? his mistress? does she make sure his shirts get laundered when he’s on a business trip?), and make the office run smoothly (does she plan the holiday party? does she hire strippers? does she make sure there are pretty pictures on the wall?) And once she’s figured all that out, she must then find out whether she can (or must) wear perfume, eyeglasses, miniskirts, earrings, a wedding ring. Whether she can (or must) wear a bra or her hair in a bun, tell (or not tell) her co-workers her salary, address her boss by his first or last name, tell (or not tell) him how she wishes to be addressed, use email after work, and on and on.
The promised performance of any job means that every movement and moment, gesture and statement, of the performer’s day (and increasingly night) is up for grabs. The terms of the contract are inevitably indeterminate—especially in a dynamic economy, where technological innovation means that work routines are revolutionized all the time. Itemizing all these ins and outs in advance would partake of the prolixity of a legal code, to borrow a phrase.
Flanigan’s response to this conundrum is that “where contracts are incomplete, there is usually an implicit or explicit understanding about the nature of a job.” We’re not clear how she knows this to be the case. The evidence of most labor history and labor sociology points in the opposite direction: workers and bosses constantly disagree about the nature of a job. Labor violence in the US, from the 1840s to the 1970s—surpassing Europe in scale and wantonness—is hard to account for without some recognition of these disagreements. But even if it were the case that there’s a shared understanding of work requirements, who decides, on any given issue, whether a specific edict of the boss violates the job description? For the Bleeding Hearts, it’s clear: the boss decides. And if the contract is unclear or doesn’t specify, says Flanigan, and “an employee is surprised to find that her job requires things she did not anticipate”—like fucking the boss—“then of course she should be free to leave the job.”
Thus, the flip side of the indeterminate contract is a rather specific contract: if you want to get paid, obey the boss. Do what you’re told, don’t talk back, and in the event of a disagreement, cede to his will. Though again, that’s almost never stipulated in advance.
Enter, Exit
But what of the freedom to enter and exit the workplace? Unlike most libertarians, many of the Bleeding Hearts accept—again, mostly as a requirement of justice, but also as an antidote to coercion—that for a contract to be freely entered into, and for exit to be a genuine option, workers must have a reasonable alternative to working. Usually, this is framed as providing everyone with a basic income. Any UBI, on this account, would have to be high enough to ensure that no one is forced to take or keep a job.
Let’s say we decided that our freedom threshold would be met by ensuring that someone who didn’t work wouldn’t fall into poverty. The current, rather miserly, poverty line for a single person in the United States is $11,170. Providing a UBI of $11,170 would require taxing roughly 40 percent of current GDP. Tax revenues now consume 20% of GDP, so tax rates would have to double—or we could simply expropriate the top 1%, who command roughly 20% of national income. A UBI guaranteeing the equivalent of the annual minimum wage—$15,080—would require taxing roughly 50% of current GDP.
On either measure—and we should be clear that neither measure in our opinion comes close to providing a reasonable alternative to work—a UBI that provided anything approaching a minimally “reasonable alternative” would require, by American standards, high levels of taxation.
It may be that the Bleeding Hearts disagree with the common libertarian claim that taxation is slavery, but most libertarians do not—certainly not enough to entertain such high levels of taxation. So the Bleeding Hearts should come clean. It’s not good enough to gesture vaguely in the direction of a UBI as a “get out of jail free card” when issues of freedom and consent are raised, without facing up to the question of whether a large enough UBI to make entry and exit genuinely voluntary could be financed with whatever taxes they consider to be just.
But say the Bleeding Hearts were willing to raise taxes for the sake of creating a reasonable alternative to selling one’s labor. Would a UBI, on its own, really constitute that alternative? There’s no doubt that a far heftier UBI—one that allowed a single person to live more than an impoverished existence—would offer a reasonable alternative at the moment of contract. It’s not at all clear, however, that even a robust UBI would constitute a reasonable alternative at the moment of exit, when an employee must consider all the costs (financial and otherwise) of leaving her job and all the sunk costs she’ll never recover. Certainly not enough of an alternative to warrant the claim that staying at a job is a genuinely free decision.
Anyone who has been in a job for a while, who has committed to a mortgage, has children in school and shares her life with a partner, knows that just walking out, with an income stream committed months or years ahead, is a very bad idea unless they have something definite lined up. Indeed, when libertarian Julian Sanchez offered his presignation letter to Cato, he acknowledged that one of the reasons he could even contemplate quitting was that he was “relatively young, and unencumbered by responsibility for a mortgage or kids” and had “fine options”—i.e., comparable and credible work alternatives.
The costs of walking out extend far beyond simple finances. Men and women who have worked in a place for years may be embedded in a network of relations—with co-workers, clients, suppliers, and so on—that constitute a major part of their world. They live in communities where their children attend schools, their partners work, and they have built lives. They may be in a career where entry opportunities are easier when young and have devoted themselves to a profession they will be lucky to get back into if they walk out. Academics, of all people, should be aware of this; employers certainly are.
Simply having the economic means to leave a job, or at least being able survive for a while without a job, cannot address the loss of these goods. It is absurd to think that $11,170/year can compensate for these other costs of leaving a job.
Moreover, there are many smaller coercions and harassments against which a UBI—or any alternative requiring the worker’s exit—would be powerless. If a boss decides to restrict breaks to thirteen minutes instead of fifteen, install cameras outside the bathroom to monitor usage, or make everyone stay three minutes later each day to perform extra paperwork but without extra pay, the threat to leave would be too great to leverage against the grievance. This is why employers often change job expectations and requirements in small increments. In the face of such changes, protest—much less quitting—can seem unreasonable and irrational. The threat of exit would be empty because it could so easily be called as a bluff. Since leaving is a kind of nuclear option, exit is not a universal deterrent. It is too crude an instrument to guarantee that workers can avoid being coerced precisely because it does not, in fact, provide a reasonable alternative in these situations. More fine-grained instruments – like having control over the job itself – are required to resist these petty harassments and mini-coercions.
The larger problem lies in the simplistic notion that the ability to freely enter or exit the workplace disposes of the problem of freedom inside the workplace. On the front end, most libertarians believe that contracts are freedom-preserving: so long as they aren’t coerced or fraudulent, there are no freedom-related objections to be made. But this is a mistake. If someone contracted to be the slave to another person for a year, with no possibility of exit, surely that initial moment of consent does not preserve the slave’s freedom for the remaining 364 days of the year. Even libertarians—at least the sane ones—believe that there are some things you cannot consent to, like slavery, and still retain your freedom. (Up until the 1980s, it was legal in most states in the US for a husband to rape his wife on the grounds that her decision to marry him entailed an agreement to provide him sexual access for the duration of their marriage. That was thought to be a consent, in the famous words of Matthew Hale, that “she [could not] retract,” at least not while she remained in the contract.) In those cases, the contract is freedom canceling, not freedom preserving. And it’s not the desperate conditions—which give rise to the contract—that make it freedom canceling; it’s the contract itself.
On the back end, the limitations of exit as an instrument of freedom can be illustrated by a simple analogy. Suppose Canada were a dictatorship, but the United States welcomed anyone who wished to leave, paid for her ticket and promised her a job. Would that mean that anyone who stayed behind was free? Or think about the implicit contract at the heart of ethnic cleansing: exit and live; stay and die. Now it’s undoubtedly true that exit is better than no exit—ethnic cleansing being better than genocide—in that it limits the reach of coercion. But it’s not true that exit lessens coercion and increases freedom among those who stay. Surely we don’t want to claim that those Jews who refused to flee the pogroms of tsarist Russia were somehow free. To be clear: the point is not that the workplace is as unfree as a dictatorship or the shtetl but that just because an employee can leave doesn’t mean she is free at work.
Law and Voice
Where these thoughts lead is exactly in the opposite direction of libertarianism, including the Bleeding Heart variety: state interference—that is, law and regulation—and economic democracy—that is, more voice—on the job can be liberating.
One way the state can protect workers from coercion and thereby defend their freedom is to interfere with freedom of contract, by making some contracts altogether impossible and by insisting on fair contractual terms for others. This notion, that the preservation of freedom sometimes requires the restriction of freedom, may induce incomprehension or apoplexy in the libertarian—but it should not. After all, libertarians are themselves committed to such a thought in their basic justification for the state: the coercion of the state frees people from the “wild” coercion of lawless individuals. When the law makes me unfree to do a thing that has the happy consequence that nobody can coerce me to do that thing. Nor can I be bargained or negotiated into a position where I have to. In this way the state preserves my freedom when it forbids me from making a contract to enslave myself. Similarly, when states insist, as they do in many jurisdictions outside the United States (Montana is the only the state in America that has such a provision), that employers must show just cause for firing people, it thereby protects them against the kind of encroachments on their freedom that employers are tempted to make.
Another way to protect workers’ freedom is to give them more voice on the job. If entry and exit are emblems of freedom because they express the voluntary will of the individual, why limit those expressions to two moments: when she steps inside the workplace and when she leaves? Would the worker not have more freedom if she had more opportunities to express and act upon her will inside the workplace? Not just more occasions but also more ways to express her will? To say something beyond “I’m staying” or “I’m going”? Imagine if she were free to say, without fear of punishment, “I think you should change your policy of not allowing women to wear skirts?” Or “I’m going to the bathroom” (or, better yet, if she didn’t have to say that at all)? Or “I think you should consider voting for the Green Party”? Would not those greater opportunities for expression (greater in variety and occasion) increase freedom rather than diminish it? It’s true that these expressions of worker freedom require limitations on the employer’s freedom to fire workers. But that, it seems to us, is at the heart of any notion of equal freedom in society: your right to swing your arms always ends just where my nose begins.
These are just some of the considerations that lie at the heart of any defense of unions, regulation of contract and the workplace, and workplace democracy. Whether we call that defense egalitarian liberal, social democratic or democratic socialist, libertarians reject it as an abridgment of economic freedom and, more particularly, the freedom of owners to do what they wish with their property. But the defense of freedom requires such interventions. Private power, left as unrestricted as the Bleeding Hearts would leave it, simply gives too much scope to private empires of tyranny and domination. Taking freedom seriously means confronting the unfreedoms that ordinary people are subject to in their ordinary lives: the Bleeding Hearts, with their fetish of private property and contract, just can’t do that.
