Saturday, April 5, 2008

The FBI and Dr. King

This past week marked the 40th year of the assassination of Dr. Martin Luther King, Jr.

In a few months, the FBI will celebrate its hundredth anniversary. Many of the FBI's victims will not be around to celebrate.

On the FBI's COINTELPRO program generally, see Churchill and Vander Wall's The Cointelpro Papers.

Here's the FBI's mission statement and statement of priorities, from its website.

And following is the introduction to the Church Committee's report on the FBI's harassment of Dr. King and his Southern Christian Leadership Conference.


From December 1963 until his death in 1968, Martin Luther King, Jr. was the target of an intensive campaign by the Federal Bureau of Investigation to "neutralize" him as an effective civil rights leader. In the words of the man in charge of the FBI's "war" against Dr. King:

No holds were barred. We have used [similar] techniques against Soviet agents. [The same methods were] brought home against any organization against which we were targeted. We did not differentiate. This is a rough, tough business. 1

The FBI collected information about Dr. King's plans and activities through an extensive surveillance program, employing nearly every intelligence-gathering technique at the Bureau's disposal. Wiretaps, which were initially approved by Attorney General Robert F. Kennedy, were maintained on Dr. King's home telephone from October 1963 until mid-1965; the SCLC headquarter's telephones were covered by wiretaps for an even longer period. Phones in the homes and offices of some of Dr. King's close advisers were also wiretapped. The FBI has acknowledged 16 occasions on which microphones were hidden in Dr. King's hotel and motel rooms in an "attempt" to obtain information about the "private activities of King and his advisers" for use to "completely discredit" them. 2

FBI informants in the civil rights movement and reports from field offices kept the Bureau's headquarters informed of developments in the civil rights field. The FBI's presence was so intrusive that one major figure in the civil rights movement testified that his colleagues referred to themselves as members of "the FBI's golden record club." 3

The FBI's formal program to discredit Dr. King with Government officials began with the distribution of a "monograph" which the FBI realized could "be regarded as a personal attack on Martin Luther King," 4 and which was subsequently described by a Justice Department official as "a personal diatribe ... a personal attack without evidentiary support." 5

Congressional leaders were warned "off the record" about alleged dangers posed by Reverend King. The FBI responded to Dr. King's receipt of the Nobel Peace Prize by attempting to undermine his reception by foreign heads of state and American ambassadors in the countries that be planned to visit. When Dr. King returned to the United States, steps were taken to reduce support for a huge banquet and a special "day" that were being planned in his honor.

The FBI's program to destroy Dr. King as the leader of the civil rights movement entailed attempts to discredit him with churches, universities, and the press. Steps were taken to attempt to convince the National Council of Churches, the Baptist World Alliance, and leading Protestant ministers to halt financial support of the Southern Christian Leadership Conference (SCLC), and to persuade them that "Negro leaders should completely isolate King and remove him from the role he is now occupying in civil rights activities." 6 When the FBI learned that Dr. King intended to visit the Pope, an agent was dispatched to persuade Francis Cardinal Spellman to warn the Pope about "the likely embarrassment that may result to the Pope should he grant King an audience." 7 The FBI sought to influence universities to withhold honorary degrees from Dr. King. Attempts were made to prevent the publication of articles favorable to Dr. King and to find "friendly" news sources that would print unfavorable articles. The FBI offered to play for reporters tape recordings allegedly made from microphone surveillance of Dr. King's hotel rooms.

The FBI mailed Dr. King a tape recording made from its microphone coverage. According to the Chief of the FBI's Domestic Intelligence Division, the tape was intended to precipitate a separation between Dr. King and his wife in the belief that the separation would reduce Dr. King's stature. 7a The tape recording was accompanied by a note which Dr. King and his advisers interpreted as a threat to release the tape recording unless Dr. King committed suicide. The FBI also made preparations to promote someone "to assume the role of leadership of the Negro people when King has been completely discredited." 8

The campaign against Dr. King included attempts to destroy the Southern Christian Leadership Conference by cutting off its sources of funds. The FBI considered, and on some occasions executed, plans to cut off the support of some of the SCLC's major contributors, including religious organizations, a labor union, and donors of grants such as the Ford Foundation. One FBI field office recommended that the FBI send letters to the SCLC's donors over Dr. King's forged signature warning them that the SCLC was under investigation by the Internal Revenue Service. The IRS files on Dr. King and the SCLC were carefully scrutinized for financial irregularities. For over a year, the FBI unsuccessfully attempted to establish that Dr. King had a secret foreign bank account in which he was sequestering funds.

The FBI campaign to discredit and destroy Dr. King was marked by extreme personal vindictiveness. As early as 1962, Director Hoover penned on an FBI memorandum, "King is no good." 9 At the August 1963 March on Washington, Dr. King told the country of his dream that "all of God's children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual, 'Free at last, free at last. Thank God almighty, I'm free at last."' 10 The FBI's Domestic Intelligence Division described this "demagogic speech" as yet more evidence that Dr. King was "the most dangerous and effective Negro leader in the country." 11 Shortly afterward, Time magazine chose Dr. King as the "Man of the Year," an honor which elicited Director Hoover's comment that "they had to dig deep in the garbage to come up with this one." 12 Hoover wrote "astounding" across the memorandum informing him that Dr. King had been granted an audience with the Pope despite the FBI's efforts to prevent such a meeting. The depth of Director Hoover's bitterness toward Dr. King, a bitterness which he had effectively communicated to his subordinates in the FBI, was apparent from the FBI's attempts to sully Dr. King's reputation long after his death. Plans were made to "brief" congressional leaders in 1969 to prevent the passage of a "Martin Luther King Day." In 1970, Director Hoover told reporters that Dr. King was the "last one in the world who should ever have received" the Nobel Peace Prize. 13

The extent to which Government officials outside of the FBI must bear responsibility for the FBI's campaign to discredit Dr. King is not clear. Government officials outside of the FBI were not aware of most of the specific FBI actions to discredit Dr. King. Officials in the Justice Department and White House were aware, however, that the FBI was conducting an intelligence investigation, not a criminal investigation, of Dr. King; that the FBI had written authorization from the Attorney General to wiretap Dr. King and the SCLC offices in New York and Washington; and that the FBI reports on Dr. King contained considerable information of a political and personal nature which was "irrelevant and spurious" to the stated reasons for the investigation. 14 Those high executive branch officials were also aware that the FBI was disseminating vicious characterizations of Dr. King within the Government; that the FBI had tape recordings embarrassing to Dr. King which it had offered to play to a White House official and to reporters; and that the FBI had offered to "leak" to reporters highly damaging accusations that some of Dr. King's advisers were communists. Although some of those officials did ask top FBI officials about these charges, they did not inquire further after receiving false denials. In light of what those officials did know about the FBI's conduct toward Dr. King, they were remiss in falling to take appropriate steps to curb the Bureau's behavior. To the extent that their neglect permitted the Bureau's activities to go on unchecked, those officials must share responsibility for what occurred. The FBI now agrees that its efforts to discredit Dr. King were unjustified. The present Deputy Associate Director (Investigation) testified:

Mr. Adams. There were approximately twenty-five incidents of actions taken [to discredit Dr. King] ... I see no statutory basis or no basis of justification for the activity.

The CHAIRMAN. Was Dr. King, in his advocacy of equal rights for black citizens, advocating a course of action that in the opinion of the FBI constituted a crime?

Mr. ADAMS. No, sir.

The CHAIRMAN. He was preaching non-violence was he not, as a method of achieving equal rights for black citizens?

Mr. ADAMS. That's right ... Now as far as the activities which you are asking about, the discrediting, I know of no basis for that and I will not attempt to justify it. 15

The FBI conducted its investigation of Dr. King and the SCLC under an FBI manual provision -- called COMINFIL -- permitting the investigation of legitimate noncommunist organizations, suspected by the FBI of having been infiltrated by communists, to determine the extent, if any, of communist influence. The FBI's investigation was based on its concern that Dr. King was being influenced by two persons -- hereinafter referred to as Adviser A and Adviser B -- that the Bureau believed were members of the Communist Party.

Officials in the Justice Department relied on the FBI's representations that both of these advisers were communists, that they were in a position to influence Dr. King, and that Adviser A in fact exercised some influence in preparing Dr. King's speeches and publications. Burke Marshall, Assistant Attorney General for Civil Rights from 1961-1965, testified that he "never had any reason to doubt [the FBI's] allegations concerning [Adviser A]." He recalled that the charges about Adviser A were "grave and serious," and said that he believed Attorney General Kennedy had permitted the investigation to proceed because:

Stopping the investigation in light of those circumstances would have run the risk that there would have been a lot of complaints that the Bureau had been blocked for political reasons from investigating serious charges about communist infiltration in the civil rights movement. 17

Edwin Guthman, Press Secretary for the Justice Department from 1961 through 1964, testified that Attorney General Robert Kennedy "viewed this as a serious matter," that he did not recall "that any of us doubted that the FBI knew what it was talking about," and that although the question of whether Adviser A was influencing Dr. King was never fully answered "we accepted pretty much what the FBI reported as being accurate." 18

We have been unable to reach a conclusion concerning the accuracy of the FBI's charges that the two Advisers were members of the Communist Party, USA or under the control of the Party during the FBI's COMINFIL investigation. However, FBI files do contain information that Adviser A and Adviser B had been members of the Communist Party at some point prior to the opening of the COMINFIL investigation in October 1962. FBI documents provided to the Committee to support the Bureau's claim that both men were members of the Communist Party at the time the COMINFIL investigation was opened are inconclusive. Moreover, the FBI has stated that it cannot provide the Committee with the full factual basis for its charges on the grounds that to do so would compromise informants of continuing use to the Bureau.

Without access to the factual evidence, we are unable to conclude whether either of those two Advisers was connected with the Communist Party when the "case" was opened in 1962, or at any time thereafter. We have seen no evidence establishing that either of those Advisers attempted to exploit the civil rights movement to carry out the plans of the Communist Party.

In any event, the FBI has stated that at no time did it have any evidence that Dr. King himself was a communist or connected with the Communist Party. Dr. King repeatedly criticized Marxist philosophies in his writing and speeches. The present Deputy Associate Director of the FBI's Domestic Intelligence Division, when asked by the Committee if the FBI ever concluded that Dr. King was a communist, testified, "No, sir, we did not." 20

The FBI's COMINFIL investigation appears to have centered almost entirely on discussions among Dr. King and his advisers about proposed civil rights activities rather than on whether those advisers were in fact agents of the Communist Party. Although the FBI conducted disruptive programs -- COINTELPROs -- against alleged communists whom it believed were attempting to influence civil rights organizations, the Bureau did not undertake to discredit the individual whom it considered Dr. King's most "dangerous"' adviser until more than four years after opening the COMINFIL investigation. 21 Moreover, when a field office reported to FBI headquarters in 1964 that the Adviser was not then under the influence and control of the Communist Party, the FBI did not curtail either its investigations or discrediting program against Dr. King, and we have no indication that the Bureau informed the Justice Department of this finding. 22 Rather than trying to discredit the alleged communists it believed were attempting to influence Dr. King, the Bureau adopted the curious tactic of trying to discredit the supposed target of Communist Party interest -- Dr. King himself.

Allegations of communist influence on Dr. King's organization must not divert attention from the fact that, as the FBI now states, its activities were unjustified and improper. In light of the Bureau's remarks about Dr. King, its reactions to his criticisms, the viciousness of its campaign to destroy him, and its failure to take comparable measures against the Advisers that it believed were communists, it is highly questionable whether the FBI's stated motivation was valid. It was certainly not justification for continuing the investigation of Dr. King for over six years, or for carrying out the attempts to destroy him.

Our investigation indicates that FBI officials believed that some of Dr. King's personal conduct was improper. Part of the FBI's efforts to undermine Dr. King's reputation involved attempts to persuade Government officials that Dr. King's personal behavior would be an embarrassment to them. The Committee did not investigate Dr. King's personal life, since such a subject has no proper place in our investigation. Moreover, in order to preclude any further dissemination of information obtained during the electronic surveillances of Dr. King, the Committee requested the FBI to excise from all documents submitted to the Committee any information which was so obtained. We raise the issue of Dr. King's private life here only because it may have played a part in forming the attitudes of certain FBI and administration officials toward Dr. King.

Many documents which we examined contained allegations about the political affiliations and morality of numerous individuals. We have attempted to be sensitive to the privacy interests of those individuals, and have taken care not to advance the effort to discredit them. We have excised many of the Bureau's characterizations from the documents quoted in this report. In some cases, however, in order fully to explain the story, it was judged necessary to quote extensively from Bureau reports, even though they contain unsupported allegations. We caution the reader not to accept these allegations on their face, but rather to read them as part of a shameful chapter in the nation's history.

The reader is also reminded that we did not conduct an investigation into the assassination of Dr. King. In the course of investigating the FBI's attempts to discredit Dr. King, we came across no indication that the FBI was in any way involved in the assassination.

Thursday, April 3, 2008

"What does that stand for, again?"

Ever since October, I've been telling people - friends, colleagues, family - that I'm working for the SEIU this summer. I make a point of saying "SEIU" to see who knows what I'm talking about. The number of people around here who know what it stands for turns out to be astoundingly few. Out of that few, virtually everyone who doesn't have to ask me "what does that stand for, again?" is a current or former union activist. Even a legal aid attorney who I spoke to a couple of days ago didn't know what it stood for. Others register recognition, but then say, "Oh, the ACLU?"

I suspect that what's going on is some good ol' fashioned elitism. Not in the sense of adopting a superior attitude, but in the sense of the legal and academic worlds, belonging to the professional/managerial class (what Michael Albert and Robin Hahnel call the "coordinator class"), being so insulated from the concerns of working class people so as to not recognize a major working class institution.

If you're like the majority that I'm lamenting, you might like to know that SEIU stands for "Service Employees International Union." The SEIU is not obscure. It is the largest union in the US in membership, representing about 2 million workers - that's four times the membership of the ACLU. And it is not an inactive union that's never in the news - it's been growing fast, adding workers by the tens of thousands; and it's recently received news coverage in connection with some internecine fighting that's been going on, between the national leadership and United Health Care Workers West, which is part of the SEIU, as well as between the SEIU and the California Nurses Association, a separate union.

Perhaps the SEIU is less well-known because it doesn't fit with the old-timey image of the industrial union like the United Auto Workers or the Steelworkers. Nor is it quite like teachers' unions, which might be more widely known because the capitalist press loves to villify them. It could be that people occasionally hear information about the SEIU, but it doesn't seep in; it's not processed because a union that represents janitors, health care workers, security guards and other service workers doesn't fit our prototypical concept.

Certainly when most people I know engage in union-bashing, it's the auto workers and teachers who tend to get it, not service workers. Now, I do sometimes hear people bash the SEIU, but that's an entirely different critique, and it comes from a different political place - from radical or progressive people who are well-informed about unions, and who dislike SEIU president Andy Stern's approach to organizing. The people who bash auto workers and teachers generally do it from a more ignorant position.

Notice that in the first paragraph I said that few people around here know who the SEIU is. Around here is Cleveland, and more particularly Case Western Reserve University. Previously, I lived in Western Massachusetts and attended UMass. Pretty much all my friends from UMass recognized who the SEIU was when I brought it up.

A few things might account for that. First, UMass until about three years ago was in part organized by the SEIU (at that time the workers switched to the Massachusetts Teachers Association because they didn't like the SEIU's national leadership's new direction). Many people I know at UMass worked within the SEIU or with the SEIU. At Case, in contrast, I don't believe any campus workers are unionized.

Second, UMass has a greater level of labor-awareness in general (or maybe I should say a lower level of labor-illiteracy). UMass has one of the few graduate programs in labor studies in the U.S., and the faculty and students are active and involved. It also has an economics department with a heterodox orientation, which draws students from the U.S. and abroad who tend to be interested in labor issues. It has other departments and programs which draw leftists, such as sociology and Social Thought and Political Economy. Perhaps most importantly: despite the efforts of its business-friendly administration, there are still a critical mass of UMass students and staff who come from working-class backgrounds, and who think critically about social and economic issues.

In Case law school, by comparison, there appear to be few students who are interested in such critical thinking. It's hard to tell what people's backgrounds are when there's little talk about society and economics outside of classroom "law and society" and "law and economics" talk, which tends to be superficial, broad, abstract and unsophisticated, and not of the kind that would lead a person to become knowledgeable about issues of economic class. But to the extent that I know people's family backgrounds, they tend to be drawn from the professions, especially lawyers.

Not too surprising, considering that many people stick with what they grow up with. But the fact that so few people around here register recognition of the country's biggest union is a symptom of the class divide in higher and professional education that should be of great concern for people who value democracy and its concomitant - elimination of the class system.

Monday, March 17, 2008


If I had a blog dedicated to hatin' on the Supreme Court, "Dunce SCOTUS" would be a good title. As satisfying as I would find that project, it's not something I'd be willing to make the time for, or be able to execute competently. But that doesn't mean I can't hate on the SCOTUS from time to time in this blog.

My friend Fabian sent me this article about the U.S. Chamber of Commerce's efforts to elitify the Supreme Court.

Tuesday, February 19, 2008

Constitutional Protections for Collective Bargaining in Canada and the U.S.

This long post contains a paper I wrote for my Canada-U.S. law class. Unfortunately, I don't know how to use the above the fold/below the fold function, so until I sort it out, the whole paper will be above the fold.

Although the class was mostly about trade and the border, I was particularly interested in the comparative aspect of Canadian and U.S. law. Since I am especially interested in labo(u)r law, I analyzed last June's Canadian Supreme Court decision in Health Services, which held that collective bargaining is a constitutional right, protected by the Charter's guarantee of freedom of association. The leading question is whether the U.S. Supreme Court would rule similarly if a freedom of association argument was brought before it.

I. Introduction

Both Canada and the United States have constitutional[1] protections for freedom of association. In Canada, the protection is explicit in Section 2(d) of the Charter of Rights and Freedoms ("Charter"). The United States Constitution does not make the protection explicit, but the Supreme Court has held that it is included in the First Amendment's protection of "the right of the people peaceably to assemble." Given that the labor[2] movement is a canonical example of civil association in both countries, the question arises whether its main activity, collective bargaining, is protected by this right.

A recent Canadian Supreme Court decision held that the answer is yes. In June 2007, the Supreme Court of Canada reversed a twenty-year-old precedent when it announced in Health Services and Support-Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27 (2007) ("Health Services") that collective bargaining is a freedom of association right protected by the Charter. In the United States, the answer appears to be no, although I could not find any cases that actually considered the question. In this paper I discuss some aspects of the Canadian Court's decision, with a view to bringing out salient differences between Canadian and U.S. constitutional jurisprudence, as well as political differences that impact the adjudication of constitutional rights . I first briefly describe the act that was challenged in Health Services and the approach taken by the Court that invalidated some of its key provisions. I then discuss two possible circumstantial causes for the outcome – the political leanings of the Canadian Court, which I conclude was probably not relevant to the decision, and the young age of the Charter compared with the U.S. Constitution, which I argue is key to their reasoning about constitutional rights. I then discuss two ways in which the Canadian and U.S. Courts differ doctrinally: the scope of freedom of association, and the way in which they review legislation that infringes on fundamental rights.

II. The Act and the Health Services Decision

The law in question, the Health and Social Services Delivery Improvement Act, was enacted by the Legislature of British Columbia in 2002 to reorganize administration in the health sector, an amalgam of private and public bodies, in order to curb rapidly increasing health care costs. S.B.C. 2002, c.2. Among other provisions, it allows health care providers to transfer work from unionized to non-unionized workers in ways that would have breached then-existing collective bargaining agreements. It also nullifies the provisions of bargaining agreements that prohibit these transfers, and makes these transfers an impermissible subject for future bargaining. The law was passed with virtually no warning and with no meaningful consultation with affected employees, a fact which, we will see, played a significant role in the Court's analysis. Health Services, paragraphs 156-160.

The complainants, mostly nurses' unions and their members, challenged the law under two sections of the Charter: Section 15, which guarantees equality rights. and Section 2(d), which guarantees association rights. The Section 15 challenge was based on the theory that the employees harmed by the legislation are predominantly women. The Court dismissed this challenge, holding that the guarantee of equal rights does not invalidate legislation just on the grounds that it has disparate impact on a protected class. But the Section 2 challenge, the subject of this paper, was successful. The full text of Section 2 is as follows:

"Everyone has the following fundamental freedoms:
a) freedom of conscience and religion;
b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
c) freedom of peaceful assembly; and
d) freedom of association."

In a 6-1 opinion, the Court held that the law violated the freedom of association guaranteed by Section 2. All seven justices agreed that freedom of association encompasses collective bargaining, and a majority of six agreed that the legislation is not rescued by Section 1, which allows legislation to stand even if it infringes on a Charter right, as long as it is reasonably justified[3]. The Court provided four arguments for its conclusion that collective bargaining is protected under freedom of association: (1) that reasons given previously for not protecting collective bargaining are inadequate; (2) that failing to treat collective bargaining as a fundamental right is inconsistent with Canada's historical recognition of collective bargaining rights; (3) that international law favors such protection; and (4) that interpreting collective bargaining as a right promotes the values of the Charter. Health Services, paragraph 20. Some of these arguments will be touched on below, as I compare U.S. and Canadian approaches to freedom of association and to judicial review of laws that infringe on fundamental rights.

III. Politics of the Court

When comparing the U.S. and Canadian courts, it is tempting to think in terms of the political attitudes of particular justices on the Canadian and U.S. courts. The Canadian public and the Canadian government are viewed as more liberal than the U.S. public and the U.S. government. One might suppose that Canadian Supreme Court Justices will be correspondingly more liberal, and as a consequence might harbor more favorable attitudes towards organized labor. The timing of Health Services makes the Court especially liberal, even by Canadian standards. The case was heard on Feb. 8, 2006, two days after the Liberal Party turned leadership of the federal government over to the Conservative Party after thirteen years of rule, which means thirteen years of Liberal appointments to the Supreme Court[4]. In contrast, the current U.S. court is dominated by Reagan, Bush Sr. and Bush Jr. appointees, and is seen as being fairly conservative, even by U.S. standards.

But there is cause to be skeptical about this way of thinking. The Court in Health Services was not very politically different from the Court that declared the opposite rule in 1987: that collective bargaining rights are not protected by the Charter. That rule was established in deciding three cases known as the "Labour Trilogy", with the most explicit discussion taking place in Reference re Public Service Employee Relations Act (Alberta) ("Alberta Reference"). 1 S.C.R. 313 (1987). A detailed examination of the political philosophies of the justices then and now is beyond the scope of this paper, but we can get a rough idea of their political leanings by looking at who appointed them[5]. Of the seven justices involved in Health Services, five (Bastarache, Binnie, LeBel, Deschamps and Fish) were appointed by Jean Chretién, one (Abella) by Paul Martin, and one (Chief Justice Beverly McLachlan) by Brian Mulroney (although she was elevated to Chief Justice by Chretién). Chretién and Martin were Liberal Prime Ministers, while Mulroney was Progressive Conservative. But the breakdown of justices deciding Alberta Reference, a case that went 4-2 the other way, was scarcely different. Of the six justices expressing an opinion in Alberta Reference, five (Beetz, McIntyre, Wilson, Le Dain, Chief Justice Brian Dickson) were appointed by Liberal Prime Minister Pierre Trudeau, and one (La Forest) was appointed by Mulroney. Trudeau, who is considered the driving force behind the Charter of Rights and Freedoms, is regarded as a more liberal prime minister than either Chretién or Martin. So if anything, the Court that declined to find in favor of labor rights in Alberta Reference may have been more liberal than the Court that favored organized labor in Health Services. For this reason, it is difficult to attribute adjudication of the issue to the political prejudices of the judges.

But the composition of the court may have been relevant in another way. There is not much discussion in Alberta Reference of the history of labor law, or of labor law in the international context. The reasoning deals with abstractions rather than the specifics of the case before it, or of labor doctrine in general. The few remarks it makes about labor law are general, such as remarking that the rights to collectively bargain and to strike are modern, statutory rights rather than a historical, fundamental ones. Alberta Reference at paragraph 190. In contrast, Health Services contains a very detailed, contextual approach, which includes a long survey of Canadian labor law history and a discussion of international labor law. Health Services at paragraphs 40-79. These discussions are probably due to Justice Louis LeBel, who co-authored the Health Services majority opinion with Chief Justice McLachlan. Justice LeBel is an authority on the topic, and his book on labor rights is cited several times in the opinion. Health Services at paragraphs 43, 55, 56. It is likely that his expertise in labor law helped him to persuade the rest of the Court to consider the issue of Charter protection for collective bargaining more carefully, and on this basis to reverse its previous approach.

IV. The Age of the Constitution vs. The Age of the Charter

The First Amendment to the U.S. Constitution was drafted in 1789 and took effect in 1791. The Charter was not finalized until almost two centuries later, in 1981, and took effect in 1982. The two documents cover much of the same ground, due in part to repeated amendment of the Constitution. I will suggest that the age difference between the two documents bears on our issue in two ways: the intent of the drafters and the tradition of interpretation.

The U.S. Supreme Court has often interpreted the Constitution with reference to the norms prevailing at the time of interpretation, rather than the time of writing. This includes interpreting the First Amendment's right to assemble as extending to the right of association more generally. Despite this tradition, the court is not united in this approach, and some of its decisions have followed the doctrine of originalism, which requires the judge to interpret the Constitution according to the meaning that its provisions were given at the time of writing. See, e.g., Crawford v. Washington, 541 U.S. 36 (2004) (meaning of Sixth Amendment's right of criminal defendant to confront her accuser is determined with reference to the purposes of the Amendment's drafters). Under this doctrine, the Constitutional text protecting "the right of the people peaceably to assemble" would be interpreted to exclude things that were not considered rights at the time of drafting and ratification of the First Amendment. The Canadian Court in Health Services, in sharp contrast, explicitly commits to a non-originalist "living document" approach, according to which the meaning of the Charter changes with the times. Health Services at paragraph 78. Nonetheless, it is sufficiently respectful of the intent of the drafters of the Charter to give it consideration. The Court argues that the prevailing norms in 1982 show that collective bargaining was viewed as a right, and that the hearings and debates held leading up to passage of the Charter show Parliamentary intent to include it. Id. at paragraphs 40-44, 64-68. So for both the U.S. and the Canadian courts, the meaning of the text at the time it was written is an important consideration.

The law's attitude toward organized labor at the time of the writing of the U.S. Constitution could scarcely have been more different than its attitude toward organized labor at the time of the writing of the Charter. When the U.S. Constitution was written in the 1780s, the English common law treated labor organizations as criminal conspiracies. Id. at paragraph 47. Shortly afterward, statutes were added making it "a criminal offence to be a member of a trade union, to call a strike, or to contribute money for trade union purposes. J.G. Riddall, The Law of Industrial Relations, London, Butterworths (1981), cited in Health Services at paragraph 47. Full-fledged legal recognition of labor rights did not arrive in the United States until passage of the National Labor Relations Act in 1935. 29 U.S.C. § 151 et. seq.

In Canada, (as the Health Services Court recounts the history), the law's hostility to labor gave way to tolerance by the 1870s, when the Trade Unions Act repealed criminal penalties for union activity. Laws that recognized labor rights started in 1900 with the Conciliation Act. By the end of the 1930s, most provinces had passed comprehensive statutes modeled on the National Labor Relations Act. This regime was eventually implemented federally by regulatory proclamation, and extended by the provinces to the public sector between 1965 and 1973. Health Services at paragraphs 51-55, 59-61.

In both countries, then, the law considered joining together for collective bargaining to be criminal activity in the 1780s, but a right by the 1980s. This means that to the extent that the doctrine of originalism is used by the courts to read their constitutions, it will oppose recognition of collective bargaining as a right under freedom of assembly in the U.S. Constitution, but support recognition as a right in the Charter.

The other effect of the age difference between the constitutions is the tradition of interpretations that the two documents have developed. The Charter, barely 25 years old, has not yet given rise to a voluminous literature regarding the proper way to interpret it, as the Constitution has. The Constitutional views of a potential nominee for the U.S. Supreme Court become very important, often as a legitimating cover for issuing politically charged decisions. As a result, the President ordinarily names constitutional scholars to the Supreme Court. In Canada, constitutional scholarship appears to be a less important consideration, and Supreme Court appointments come from different backgrounds. It is in this manner that Louis LeBel, known for his labor scholarship rather than his constitutional scholarship, was appointed. In section III above, I speculated that LeBel's presence on the Court had much to do with its change of heart regarding collective bargaining rights. If this is correct, then the different levels of emphasis on constitutional scholarship in Canada and the U.S., resulting in part from the age differences between their constitutional documents, may be ultimately responsible for the different approaches to freedom of association.

This difference in tradition also bears on the kinds of evidence that the Court would be willing to consider significant for the interpretation of the constitutional text. In Health Services, the Canadian Court looked to international principles of freedom of association to see if they included the right to collectively bargain. It found three key international law documents that Canada had signed that spoke to the issue, all of which suggested that collective bargaining is protected by freedom of association, and it reasoned that the Charter should be interpreted in accordance with these documents. Health Services at paragraphs 69-79.

Though this approach was not a controversial part of the decision among the Canadian justices, it may well be a divisive sort of reasoning in the U.S. Supreme Court. Justices Scalia, Thomas and Rehnquist have been vocally opposed, both in Court opinions and in public presentations, to U.S. judicial incorporation of international law. See Sosa v. Alvarez-Machain, 542 U.S. 692 (2004); Supreme Court Justices Spar Over International Law, Associated Press, January 18, 2005. It may be possible, however, to distinguish the approach taken by the Canadian Court, which involved instruments that Canada was a party to, from the international law that the U.S. justices objected to, which was customary international law and therefore more akin to the common law, which may be legislatively negated. If this distinction is significant, it may be that the U.S. Supreme Court would accept international conventions ratified by the United States government as a legitimate basis for interpreting the Constitution.

V. Freedom of Association

In this section and the next, I discuss doctrinal approaches to freedom of association and more generally, the process of reviewing legislation that infringes on fundamental rights. These correspond to two steps of a rights analysis shared by the courts. In idealized form, this is how the process works: in step 1, it is determined whether the legislation infringes on a right. If it does, the Court goes to step 2, where it is determined whether the law can remain notwithstanding the infringement. In other words, step 1, discussed in this section for freedom of association, is about the scope of the right. Step 2 is more like a cost-benefit analysis where the government's aims and methods are weighed against the harm caused by its infringement on the right. I characterize this description as "idealized" because the Canadian Court in Health Services appears to inject an element of cost-benefit analysis into step 1. I will discuss this confusing fact in this section, along with the differences in the scope of freedom of association.

Though the Canadian and the U.S. Supreme Courts both recognize constitutional protections for freedom of association, they understand its scope differently. The Canadian approach is considered more communitarian, as opposed to the individualistic U.S. approach.

The modern U.S. approach to freedom of association is discussed by Justice Brennan in Roberts v. United States Jaycees, 468 U.S. 609 (1984). According to Brennan, the Constitution protects two sorts of associations. The first is intimate association, which involves "certain kinds of highly personal relationships" such as "those that attend the creation and sustenance of a family." Id. at 618; Id. at 619. The stated rationale for this protection is a personal liberty one: the freedom to enter into such relationships "must be secured against undue intrusion by the state because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme[6]." Id. at 617-18.

The other kind of protected association is association "for the purpose of engaging in those activities protected by the First Amendment – speech, assembly, petition for the redress of grievances, and the exercise of religion." Id. at 618. In other words, the government cannot stop a group of people from doing what each of them could do individually. The rationale here is that it is "an indispensible means of preserving other individual liberties." Id. Thus, in both cases the freedom to associate is derivative from individual liberties. Before Health Services, this was the case in Canada as well. Justice McIntyre, in his Alberta Reference opinion, wrote that freedom of association "is... a freedom belonging to the individual and not to the group formed by its exercise," adding that "[p]eople, by merely combining together, cannot create an entity that has greater constitutional rights and freedoms than they, as individuals, possess." Alberta Reference at paragraph 61.

The question arises: what about the freedom to do things that an individual is inherently incapable of doing, such as engaging in a debate, forming a human chain, going on strike, or, as in our case, bargaining collectively[7]? In the U.S. system, this would seem to be unprotected, based on the foregoing discussion. In Canada, with the overruling of Alberta Reference, it appears to be protected, as long as one of two additional requirements are met: there must either be intent by the legislature to interfere with the associational right, or else the impact must be substantial. Id. at paragraph 90.

This "substantial" requirement is what I called confusing, because it would seem to get at the degree of infringement, and hence at whether the government is reasonably justified in legislating, not at whether the infringement is of the kind that is included in the scope of the protection. In other words, it looks like a step 2 requirement, not a step 1 requirement. The four-part Oakes test used by the Canadian Court in step 2 (and discussed in the next section), already provides for weighing the deleterious effects of the legislation against its benefits, so it is very unlikely that laws that infringe on associational activity, but do not have a substantial impact, will be invalidated. Placing a substantial impact test in step 1 appears to make the alternative extra burden – legislative intent to interfere with the associational right – irrelevant, since any law that is invalidated will have satisfied the substantial impact prong.

It makes a certain amount of sense that Canada protects these collective kinds of right, and not just the individual rights protected by the U.S. Constitution. Even before Canada was founded, there was a recognition that the French-Canadian minority (and maybe also First Nations and Métis minorities?) has certain rights, such as language, cultural and religious rights, and that these are held as a group. Justice McIntyre points out in his Alberta Reference concurrence that both the original Constitution of Canada and the Charter protect group rights – Section 93 of the Constitution protects denominational schools and Section 25 of the Charter protects aboriginal groups. Alberta Reference at paragraph 156.

VI. Reasoning About Suspect Legislation

The U.S. Supreme Court traditionally defers to the Legislature, treating any of its enactments as presumptively constitutional. There are two exceptions – two kinds of acts that are treated as suspect legislation: acts that infringe on fundamental rights, and acts that create suspect classifications. These latter ones are acts which raise equal protection concerns by prescribing disparate treatment for protected groups. Suspect legislation eliminates the presumption of validity, and is subjected to some level of scrutiny by the Court.

There are generally considered to be three levels of scrutiny: rational basis, which legislation passes if it bears a reasonable relationship to a legitimate government end; intermediate scrutiny, which applies in gender discrimination cases, which requires substantially related means to an important end; and strict scrutiny, which requires means narrowly tailored to a compelling government end, and applies to laws that infringe on fundamental rights, as well as those creating certain suspect classifications, such as those based on race or national origin.

In the case of freedom of association, it would appear to be most natural to treat it as a fundamental right and subject it to strict scrutiny. In Roberts v. U.S. Jaycees, Justice Brennan states the standard as follows: "The right to associate for expressive purposes is not, however, absolute. Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms." 468 U.S. at 623.

A plain reading of the U.S. Constitution might leave the impression that rights are absolute and can never be infringed upon, no matter how compelling the ends and exacting the means. The doctrine that permits the Court to balance the government's objectives and the rights of the individual or association was developed by the Court itself. Over the years, it has become a detailed doctrine, and the Court is usually explicit about which standard it is applying, and whether it is met.

In Canada, the situation is different in that the Court is permitted by the Charter itself to uphold legislation that infringes on people's rights. The Charter's Section 1 states that the guarantees of rights and freedoms are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." This is an explicit instruction to review legislation for reasonability and justification. Unlike the two-part U.S. test that varies according to the nature of the right being infringed upon, the Canadian Court uses the same four-part test, stated in R. v. Oakes, in every case. 1 S.C.R. 103 (1986).

Part 1 requires the government's objective to be "pressing and substantial," which sounds a lot like the U.S. Supreme Court's "compelling interests" standard. Part 2 requires a rational connection between the ends and means. This looks equivalent to the U.S. "rational basis" test for means. Thus Canada uses strict scrutiny, the toughest standard, for ends, but rational basis, the most lenient standard, for means. This appears odd at first, but parts 3 and 4 of the Oakes test clarify that in fact the Canadian Court is applying strict scrutiny throughout. Part 3 requires the law to be minimally impairing, and part 4 requires proportionality "between the salutary and deleterious effects of the law." Oakes at paragraph 140, cited by Health Services at paragraph 138. Part 3 corresponds to the U.S. "narrowly tailored" test, while part 4 requires a cost-benefits analysis that is not explicit in the U.S. system, but is implicit in many cases[8].

The Health Services Court found that the government's end was clearly pressing and substantial. Health Services at paragraph 144. Its purpose was to cut the cost of health care, a service which it was obligated to deliver, and which was in a crisis of unsustainability, with costs rising at triple the rate of inflation. Id. at paragraph 4.

It also found that there was clearly a rational connection between allowing health care providers to avoid the higher cost of dealing with unionized employees and the goal of cutting costs. Id. at paragraph 149.

The Court's reasoning in part 3 – the narrow tailoring – is interesting because the Court appears to apply it differently from how the U.S. Courts apply it. In particular, it looks like the law in Health Services failed this test not because of the content of the legislation, but because of process – the fact that the Liberal majority government in British Columbia rammed it through the legislature with no real opportunity for debate or negotiation. The Court asserted that the test was not of process but of content, and reassures the reader that "[l]egislators are not bound to consult with affected parties before passing legislation." Id at paragraph 157. It asserts that it looks to the process merely for its evidentiary value in assessing the proposition that there was no good faith attempt on the government's part to minimize the negative impact. But the fact that the Court kept repeating that there was no consultation, spending about five paragraphs on it (156-160) suggests that the failure to consult was an important, maybe the most important, consideration.

This is different from the approach ordinarily taken by the U.S. Court – for example the Court in Roberts – for whom tailoring means looking to see if the law covers too broad a group of people, or if reasonable alternatives exist that would cause less harm. I am not aware of any cases in which the legislative process played as important a role in Supreme Court review as it did in Health Services.

Is it a good idea to look at legislative history when reviewing a law for under the narrow tailoring standard? Those who equate the law with its text might object, but there are good reasons to support such an approach. First, it is not just laws qua laws that are reviewed by the Court; it reviews actions as well, such as Executive behavior. The Constitution prescribes and proscribes actions as well as laws. Since a law requires action to come into being, it stands to reason that the action can be scrutinized by the Court for constitutionality. Second, the famous footnote 4 of U.S. v. Carolene Products explains the rationale for strict scrutiny as being for the protection of minority groups that may not be protected by the legislative process. 34 U.S. 144 (1938). If this is its purpose, then a review of the degree of protection offered by the legislative process in a particular situation seems very appropriate. The U.S. Court might benefit from inspecting the process of legislation as part of its weighing of the constitutionality of a given provision.

Section 1 of the Charter calls for the constitutional review to be conducted with consideration for "a free and democratic society." If democracy involves deliberation, the Canadian "minimal impairment" rule, and its inclusion of process review as demonstrated in Health Services, appears to be preferable to the U.S. "narrow tailoring" rule and its exclusion of the context of legislation. Health Services was correctly decided.

[1] I will use "constitution" and "constitutional" to refer to foundational documents such as the Canadian Charter of Rights and Freedoms and the United States Constitution. I will use "the Constitution" to refer to the latter. Neither term should be taken to refer to the 1867 Canadian Constitution unless it is specifically referred to.
[2] For the sake of consistency, where there is a discrepancy between a Canadian and American spelling of a word, I will use the American spelling, except in proper names and direct quotes.
[3] I will discuss Section 1 in more detail in the last section of the paper. Its full text reads: "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
[4] Formally, it is the Queen, acting through the Governor-General, who appoints Canadian judges. In reality, the selection is made by the Prime Minister.
[5] This data was determined by comparing the terms in office of the Prime Ministers, from, with those of the Justices from .
[6] It seems demented that freedom to enter into personal relationships is protected because it is seen as a means to an end, rather than an end in itself. But it is apparently the law.
[7] To be sure, an individual can bargain with her employer; she can also refuse to work and hold a picket sign outside her workplace. But as the Canadian Court recognizes, these are legally distinct from collectively bargaining or striking. See Alberta Reference at paragraph 93 (Dickson, C.J., dissenting). The same is true in the U.S., where the National Labor Relations Act protects concerted activity but not individual activity. 29 U.S.C. § 157.
[8] The first three parts of the Canadian test appear to cover more or less the same ground as the U.S. strict scrutiny test. As just mentioned, this test is applied with respect to any sort of Charter infringement, not only the most suspect kinds. This makes the Charter, at least in theory, much more powerful than the Constitution, because it will review legislation strictly in a much broader set of cases. Perhaps the difference is not as great as it seems, because the Charter mostly corresponds just to the Bill of Rights, not the entire Constitution, and the rights contained in the Bill of Rights are generally subjected to strict scrutiny, unlike other parts of the Constitution such as the Commerce Clause.
Still, the Charter is in some ways more powerful than the Constitution. For example, Section 15 of the Charter contains equal rights provisions parallel to the 14th Amendment to the Constitution. Not every suspect classification is reviewed with strict scrutiny if it offends the 14th amendment. For example, laws that discriminate on the basis of sex are subjected only to intermediate scrutiny. On the other hand, many Charter rights (including freedom of association) are subject to the Notwithstanding Clause of Section 33, which allows a legislature, by declaration, to promulgate a law even if it is infringes on a right; this option is not available to legislatures in the U.S..