Public Unions and the Constitutional Order

In Not Accountable: Rethinking the Constitutionality of Public Employee Unions, Philip K. Howard sounds the alarm about the power and influence of public employee unions. In his view, American democracy “no longer works because public unions have turned the constitutional hierarchy upside down,” with government officials now answering not to voters but to public employees.The results? Howard does not hold back: “Bad schools, unaccountable police, and other endemic failures of modern American government,” all of which he deems to be “impervious to reform” through the ordinary processes of political and civic engagement.

Does that mean the nation is doomed to substandard education, poor public safety, and lack of basic government services? Interestingly, Howard’s answer to this question is “no.” That is because he thinks that courts, exercising their powers of constitutional interpretation and construction, can rein in the abuses of public unions.

In offering this prescription, Not Accountable makes substantive and creative contributions to current debates about effective government and constitutional meaning. But it is hard not to be skeptical about Howard’s judicial remedy for what, in his diagnosis, ails the American polity. First, for courts to play the role Howard has in mind for them would require major overhauls in constitutional doctrine. And second, Howard’s arguments about the drawbacks of public unions have already found receptive audiences in members of the political branches and perhaps even among the people themselves. In sum, Howard may be placing too much faith in judges and too little in other constitutional actors.