In the twenty-first century, the workplace Constitution has all but vanished. The National Labor Relations Board’s antidiscrimination policies are tucked away in an obscure agency manual and rarely put to use. The Supreme Court’s desire to “promote equality between government and private employers” has fatefully narrowed the scope of public employees’ constitutional rights. Right-to-work advocates have fared somewhat better: despite the general weakening of public employees’ constitutional rights, the Supreme Court seems poised to further protect them from having to support unions, fulfi lling a goal the movement has pursued since the 1960s. The Court’s affirmative action cases have proved the most robust, but at a cost to the liberal workplace Constitution. In the late 1990s, a federal appellate court struck down the Federal Communication Commission’s equal employment rules as a violation of equal protection. These precedents also threaten aspects of Title VII of the 1964 Civil Rights Act. Few scholars advocate the workplace Constitution’s potential, and no movement rallies around it.

Meanwhile, the workplace has been radically transformed. Union membership has dropped to below 10 percent. The employment relationship is dissolving: temporary, part-time, and contract jobs are on the rise, and new time-management systems allow employers to convert many employees to on-call workers. Even full-time, permanent employees expect to change jobs frequently. Meanwhile, technology has disseminated the workplace into every corner of life.