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Union by Law: Filipino American Labor Activists, Rights Radicalism, and Racial Capitalism. By Michael W. McCann with George I. Lovell. Chicago: University of Chicago Press, 2020. 504p. $105.00 cloth, $35.00 paper. - In the Name of Liberty: The Argument for Universal Unionization. By Mark R. Reiff. Cambridge: Cambridge University Press, 2020. 417p. $120.00 cloth.

Published online by Cambridge University Press:  02 September 2021

John Medearis*
University of California,
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Book Reviews: American Politics
© The Author(s), 2021. Published by Cambridge University Press on behalf of the American Political Science Association

When Silme Domingo and Michael Woo made their undercover investigative trip to four remote Alaska salmon canneries, nine years had passed since the 1964 Civil Rights Act. But the racially oppressive conditions they documented were not too different from what their fathers had experienced in such canneries, well before the “civil rights revolution.” The dirty, dangerous, and seasonal cannery jobs—performing subordinate roles, including butchering, sliming, sluicing, and egg pulling—were overwhelmingly held by Native Alaskan, Filipino American, and other Asian American workers, report Michael W. McCann and George I. Lovell in their rich and compelling new book, Union by Law: Filipino American Labor Activists, Rights Radicalism, and Racial Capitalism. In addition, these low-wage workers were relegated to segregated dining facilities and living quarters, the latter poorly insulated against the elements. The supervisors and workers on fishing boats, meanwhile, were predominantly white. Workers who challenged these exploitive practices were blacklisted.

In different ways, both McCann and Lovell and Mark R. Reiff, in his new book, In the Name of Liberty: The Argument for Universal Unionization, make clear why such conditions—why, in general, the structure and character of work—should be central to political inquiry and to studies of freedom and domination in a racially complex and deeply unequal society. Another significant and revealing similarity of the two books is that they each respond—in a distinctive way—to a “libertarian utopia” (Reiff’s term), an ideal narrative about free workers entering only into self-created, voluntary relationships untouched by enduring social relations of race, economic power, and legal disadvantage. The role that such a vision plays in these books—and the insights and oversights that follow from the way the authors choose to respond to it—make reading the books together rewarding. In McCann and Lovell’s book, the libertarian tale is at the heart of the Supreme Court majority’s opinion in Wards Cove Packing Co. v. Atonio (1989), which denied that a group of cannery employees had provided sufficient evidence that racial inequities like the ones Domingo and Woo chronicled resulted from anything other than free, unbiased choice and adherence to legitimate business practices. The Court majority’s position effectively squelched “disparate impact” analysis of workplace discrimination for a time. McCann and Lovell see that squelching as premised on a willful “erasure” of the historical origins of oppression in the canneries (p. 2). They seek to rectify the erasure with an account that shows exactly how the workplace order still in place in the 1970s was the lasting product of institutions, practices, and beliefs shaped by decades of US imperialism in the Philippines and interlocking legal and economic institutions that openly incorporated immigrants, Native Americans, and Blacks into US political and economic life on starkly unequal terms.

The utopia that provokes Reiff’s book is a more self-consciously libertarian one, and its more explicit philosophical premises make it a good starting point for tracing out what these two books teach us about politics and political inquiry. As his title indicates, Reiff’s book argues on the basis of a republican theory of liberty for universal unionization: union representation as a matter of right in every workplace, without the need for an organizing campaign and election. Reiff makes his case in three main essays, the first of which argues, counterintuitively, that unions would arise, on libertarian terms, in a libertarian ideal situation like the one described by Robert Nozick in Anarchy, State, and Utopia (1974). In particular, Reiff takes as his starting point the imaginary Nozickian situation in which voluntary interactions between free, rights-bearing individuals have led to the creation of a minimal state or, more precisely, to the rise of “dominant protective associations” (DPAs) that undertake to look after the lives, liberty, contracts, and property rights of all individuals within a region. Reiff claims, first, that a business landscape with large firms, much like what we observe in the real world, would arise in this libertarian utopia. Next, he argues that workers in those firms would seek to unionize simply to improve their bargaining power and to make use of specialist negotiators—and that there would be no libertarian justification for rights-protecting DPAs to prevent unionization, not even if these unions compelled nonmembers to join.

The next essay in Reiff’s volume drops most (but not all) of the Nozickian apparatus to argue that unions are required to protect liberty—conceived in roughly republican terms—from the depredations of firms. Unions, Reiff, contends, should be seen as a “basic institution” of society, borrowing terminology from John Rawls. Reiff means by this that unions should be recognized as needed “to make the basic structure” of society “more likely to be just” (p. 80). This claim is premised on a particular republican understanding of liberty, “the right to be free from interference by the arbitrary will of another” (p. 57), with Reiff giving the word “arbitrary” a distinctive meaning (p. 89).

For Reiff, this understanding of liberty is premised on the generally libertarian concept of “self-ownership” (pp. 56, 86). And his reliance on self-ownership clarifies the achievement of his book while also highlighting what we have to look for elsewhere in the quest to understand the politics of labor. Like many others, Reiff seems to regard “self-ownership” simply as an innocent way to express both commitment to individual autonomy and the rejection of domination. But staking freedom and autonomy on ownership and all that it entails is anything but innocent. To own something implies the right to transfer it to someone else. Yet there are some things we cannot (and others we ought not) simply transfer to someone else: a prime example is labor itself, a “fictitious commodity” in Karl Polanyi’s words, something inextricably connected to our persons. Social interactions (like selling labor) that purport to be simple transfers of such things are often really something else: acts that produce or reproduce social relations of subordination, as Carole Pateman has argued. Those potentially oppressive social relations, far from being free creations of their producers and reproducers, often escape their intentions, a point to which I return in a moment.

Of course, the whole purpose of Reiff’s book is to make the case for limiting the harm to freedom that can be done by employers through employment relations. Much of his book is a virtuosic demonstration of what can be argued for a more just economic order even from the standpoint of libertarian-friendly premises. (The third essay, defending public sector unionization, adopts more eclectic premises and ranges more broadly.) Reiff’s case for universal unionization is a most welcome contribution when the existing labor-relations model in the United States seems broken, and work is undergoing a profound transformation, thanks to Uber and Door Dash.

Still, the way in which the actual oppressive character of labor relations often escapes the intentions and full awareness of many workers (and bosses) who reproduce them is clearer in McCann and Lovell’s book. For this phenomenon is exactly what the Supreme Court majority opinion in Wards Cove overlooked or denied. By the time that Domingo and Woo made their research trip, hiring—the buying and selling of labor power for the canneries—was organized through union hiring halls. Yet the hiring halls in no way challenged the long-standing existence of completely separate recruitment channels for the canneries: one for the dangerous, low-wage work and another for supervisors, as McCann and Lovell point out (p. 227). And these institutionalized channels, especially the low-wage one, had hardly changed since being shaped over decades by the political economy of empire, race, and migrant labor.

To understand this shaping, it helps to consider the Filipino cannery workforce as it was in the early to mid-twentieth century: it was made up predominantly of migrant noncitizens, subjects of “imported colonialism,” exploited at work, discriminated against in their broader communities, and excluded from the promises of full and equal belonging (pp. 74, 370). This condition, in turn, can only be fully explained by pointing to the complex intersection of multiple historical institutions and forces. First, there is the long US imperial project in the Philippines, which institutionalized racial hierarchy on the islands, created landownership patterns that forced many Filipinos to migrate to the US metropole, and established the status Filipinos would experience when they did so—not as citizens but as “nationals,” as “colonial subjects bound by loyalty to American sovereign authority but allowed to travel within and among the territorial borders of the United States” (p. 78). (This is one example of a broader pattern: a US political and legal order historically shaped by racially distinct and unequal citizenship categories.) Then there is the growth of racism among white citizens and workers, which McCann and Lovell understand in part as a response to their declining status in a changing economy (p. 44). Finally, there is the hierarchical and oppressive order of the workplace itself, which the authors argue constitutes an exception to the supposedly ubiquitous free liberal American order (pp. 17, 132, 370). Running through their complex historical explanation of these phenomena is their understanding of law as contradictory and contested. On the one hand, the legal structures that supported empire, oppressive workplaces, and racialized citizenship show that the optimistic, liberal view of law—law viewed as correcting exceptional, private discriminatory practices—is profoundly partial.

Nevertheless, on the other hand, the contrasting view that law can be nothing but a tool of white capitalists is belied by another running theme of McCann and Lovell’s book: the legal mobilization and rights consciousness of immigrant cannery workers. The authors make the case that this consciousness, too, can only be understood historically, as developing over time. It had been shaped by a succession of experiences: legal struggles in the early twentieth century to overcome or bypass alien land laws that prevented many immigrants from owning and leasing farm plots (pp. 102–7); a wave of labor organizing in the canneries in the 1930s (pp. 119–59); and antiwar, anti-imperialist student organizing in the 1960s and 1970s (p. 231).

Although the Court put an untimely end to the cannery workers’ claims in the Wards Cove case, and thus at least temporarily hampered efforts to make creative use of Title VII of the Civil Rights Act, McCann and Lovell insist that a crucial lesson of the episode is the ability of oppressed working people to develop and organize around innovative legal arguments and strategies. The potential of such mobilization to reshape the social order is still another reason to heed the lesson of both these books about the need for political inquiry to keep labor in focus.