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Democracy

Antidemocracy

Democracy can take root anywhere, from community gardens to the most toxic workplace environments. It’s planted whenever people treat one another as political equals, allowing everyone in the community, or demos, to share in exercising power, or kratos.1×1. Paul Cartledge, Democracy 3–4 (2016); Josiah Ober, Political Dissent In Democratic Athens 29, 71 (1998); see also Robert A. Dahl, On Democracy 10–11 (Veritas paperback ed. 2020); David Graeber, The Democracy Project 183–84 (2013); Elizabeth S. Anderson, What Is the Point of Equality?, 109 Ethics 287, 289 (1999) Where democracy is allowed to blossom, it can undermine social hierarchies that have long seemed like natural features of the landscape.2×2. See Anderson, supra note 1, at 312–13. And it’s perhaps for this reason that when property owners see democracy growing where they don’t want it, they often suppress it like a weed.

Generations of farmworkers have confronted this problem while trying to cultivate democracy in American soil. A group of wealthy planters seeded a perennial ideal when they first proclaimed that “all men are created equal.”3×3. See Danielle Allen, Our Declaration 178–82 (2014). Yet they faced the violent resistance of a British monarch whose supporters claimed that sovereignty was an inherited part of his estate.4×4. See Brendan McConville, The King’s Three Faces 209–17, 290–91 (2006). The farmers who fought the American Revolution nurtured the ideal of political equality in the name of “Democracy in America.”5×5. See Graeber, supra note 1, at 171; 2 Alexis de Tocqueville, Democracy in America 49–63 (Henry Reeve trans., London, Saunders & Otley 1835). Yet they were fenced in by constitutional barriers designed to protect property from their rule.6×6. See Adam Przeworski, Why Bother with Elections? 8–9 (2018). Enslaved field hands waged a civil war and a general strike to graft “abolition” onto American democracy.7×7. W.E.B. Du Bois, Black Reconstruction 83 (1935). Yet a counterrevolution of property lynched the victors, disenfranchised them, and codified their inferior status for the next hundred years.8×8. See id. at 630–34.

In each case, like an herbicide to protect property from the “excess of democracy,”9×9. 1 The Records of the Federal Convention of 1787, at 48 (Max Farrand ed., 1911). antidemocracy has sustained social hierarchies from the spread of political equality. Whether it comes in the form of violent repression, vetoes of legislation by unelected officials, or practically un-amendable constitutional restrictions, antidemocracy has had a long half-life.10×10. See Przeworski, supra note 6, at 9.

Even in the middle of the twentieth century, when women and people of color successfully expanded the right to vote, Cesar Chavez, Dolores Huerta, and farmworkers in California learned that democracy on Election Day means very little when antidemocracy suppresses political equality elsewhere. Then as now, immigrant farmworkers were disenfranchised, and even citizen farmworkers spent their waking hours dominated by employers who could fire them for any reason.11×11. See Philip L. Martin, Promise Unfulfilled: Unions, Immigration and the Farm Workers 3 (2018); infra pp. 175–76. When farmworkers acted collectively to resist workplace oppression, employers and their political allies used violence, arrests, and injunctions to disrupt farmworker organizing.12×12. Marshall Ganz, Why David Sometimes Wins: Leadership, Organization, and Strategy in the California Farm Worker Movement 35–41 (2009). When farmworkers used their numbers to elect their own political allies, employers took advantage of antidemocratic checks in the political process to cement their own power.13×13. Id. at 33, 41. And when farmworkers succeeded in winning compromises with employers — in the form of contracts, legislation, and constitutional changes — these successes entrenched whatever antidemocratic practices were allowed to fester, even, most harmfully, within Chavez and Huerta’s own union, the United Farm Workers.14×14. See id. at 242–48; Martin, supra note 11, at 75–77; Miriam Pawel, The Crusades of Cesar Chavez 416–28 (2014).

In a recent case involving the United Farm Workers, the Supreme Court gave property owners yet another tool to suppress democracy. In Cedar Point Nursery v. Hassid,15×15. 141 S. Ct. 2063 (2021). the Court held that the U.S. Constitution requires the government to compensate property owners whenever a law interferes with their “right to exclude.”16×16. Id. at 2072. The decision immediately endangered one of Chavez and Huerta’s political successes: a California regulation that required employers to admit union organizers on company property.17×17. Id. at 2069, 2080. But the principle of the decision could also endanger all the other laws that mitigate the harms of workplace hierarchies, making it far more difficult for organizers to build democracy in the workplace.

From farms and factories to Fortune 500 companies, the vast majority of American workplaces function not as democracies, but as dictatorships.18×18. Elizabeth Anderson, Private Government 37–41 (2017). The typical employer can wield the threat of firing workers to force them to take virtually any action.19×19. Alex Gourevitch, Liberty and Democratic Insurgency: The Republican Case for the Right to Strike, in Republicanism and the Future of Democracy 173, 175–76 (Yiftah Elazar & Geneviève Rousselière eds., 2019). The only restraints on this discretion are special contract provisions or laws that nominally prohibit employers from firing workers for specific reasons, such as their race, sex, or interest in collective bargaining.20×20. Cynthia Estlund, Rethinking Autocracy at Work, 131 Harv. L. Rev. 795, 803 (2018) (book review). Although these contract provisions and laws alone do not make workplaces democratic, they do make it easier for workers to build solidarity, to organize, and to collectively demand more power over company decisions.

But legal protections of workers — such as antidiscrimination or antiretaliation laws — undoubtedly interfere with employers’ “right to exclude” the workers they want to fire. The very point of these legal protections is to prevent employers from excluding Black workers, pregnant workers, or union-affiliated workers from company property. Indeed, when Congress enacted the Civil Rights Act of 1964, a White property owner challenged the law before the Supreme Court by alleging that the federal government owed him one million dollars for taking away his right to exclude Black people from his motel.21×21. See infra p. 190. Although the justices in 1964 summarily dismissed this argument, the justices in 2021 embraced a version of it for property owners who want to exclude people from places the owners consider accessible only to currently employed workers.22×22. See infra pp. 192–98. With some ad hoc exceptions, Cedar Point requires the government to provide compensation every time the government tells an employer that it cannot exclude certain people from entering the workplace. Applied to antidiscrimination laws, antiretaliation laws, and other labor protections, this holding could make it financially impossible for governments to protect people who want to democratize their workplaces by organizing workers who are vulnerable to being fired.

It’s possible that the Supreme Court will exercise its own discretion and moderate the terms of its new rule. Or it could do the opposite and take its new rule to the logical limit. Either way, Cedar Point illustrates how the Supreme Court today is the ultimate supplier of antidemocracy in this country. The Court controls how much democracy is allowed to exist everywhere in the United States, from Congress to the states, inside the workplace and outside. Yet the Court itself is currently undisciplined by any democratic procedure. In recent years, Congress has had little appetite to act as a coequal branch of government with the legislative power to disarm the Court and enforce its own interpretations of the Constitution — a power it once exercised to protect Black farmworkers with the same statute and constitutional provision at issue in Cedar Point. Instead, the American people have acted as if the Court’s antidemocratic interpretations of the Constitution can be overturned only by amending one of the most difficult-to-amend constitutions in the world.

If the United States is ever going to become a democracy — one in which political equality brings down its remaining dominating hierarchies — we must learn from people who have successfully cultivated democracy as an “insurgent exercise of power against uncontrolled rule.”23×23. Gourevitch, supra note 19, at 174; Jane McAlevey, A Collective Bargain: Unions, Organizing, and the Fight for Democracy 9–10, 238–39 (2020). Well-written bills and creative litigation strategies alone will not build democracy amid judges whose uncontrolled discretion and hostility to worker power are illustrated by Cedar Point.24×24. Sarita Gupta, Stephen Lerner & Joseph A. McCartin, Democracy, Equality, and the Future of Workers, in We Own the Future 150, 154 (Kate Aronoff, Peter Dreier & Michael Kazin eds., 2020). What the successes and failures of the United Farm Workers can teach us is that organizing workers democratically — whether or not the law is currently on their side — must play a central role in growing the power necessary to democratize our institutions.25×25. See Ganz, supra note 12, at 251–54; Martin, supra note 11, at 4; Jane F. McAlevey, No Shortcuts: Organizing for Power in the New Gilded Age 2–6, 182 (2016).

I begin by defining democracy and antidemocracy. I then describe the farmworkers’ difficulty in cultivating democracy, the antidemocratic potential of Cedar Point, and the longstanding sources of antidemocracy that protect the Supreme Court’s discretion. I then draw a lesson from the farmworkers’ story for how this antidemocracy can be overcome. In short, for democracy to exist anywhere, it must exist everywhere: in our workplaces, our communities, our courts, and our constitutions.26×26. See John Dewey, The Public and Its Problems 171 (Melvin L. Rogers ed., 2016 ed.); Iris Marion Young, Justice and the Politics of Difference 94 (2011 ed.).


* Assistant Professor of Law, Harvard Law School. I am very grateful to Kate Andrias, Molly Brady, Dan Farbman, Aziz Huq, David Pozen, Daphna Renan, Ben Sachs, and Laura Weinrib for their incisive feedback and criticism on short notice. I am equally grateful for the excellent research assistance of Jackson Beard, Zachary Cohen, Connor Haaland, Devon Himelman, and Emma Leibowitz, as well as for the enormously helpful contributions of Brian Highsmith. I would also like to thank the student workers of the Harvard Law Review for their many hours of uncompensated labor in bringing this piece to print.