Opinion in TCash101 v. Southeast

[Emsworth]

The Chief Justice delivered the opinion of the Court, in which Justice Colin Wixted joined. Justice TexasGurl dissented.

Part I
In November 2005, the Southeast Region passed Initiative 104, the Liberty of Contract Initiative, which read as follows:

Section One

It shall be lawful for any private business to deny an individual employment on the basis of membership or non-membership in a union or other labor organization.

Section Two

The Right-to-Work Initiative is hereby repealed.

Alleging that the initiative violated Article VI, Clause 10 of the Constitution, TCash101 filed a lawsuit against the Southeastern Region on July 15, 2006. The clause reads: "Persons in employment shall have the right to organize for the purpose of collective bargaining, with such exceptions as the Senate may provide for by Law on the grounds of vital national interest." The Court accepted the case for consideration.

Part II

The Constitution of Atlasia is a document that establishes the framework of the government, and regulates the actions that the government may undertake. It is not meant to be a code of rules that governs the actions of private individuals. Hence, when the Constitution declares that an individual has a right, it means only that the right exists against the government.

The plaintiff points out that some provisions of Article VI begin with the words "No agency of government shall...," while others do not. He suggests that, because the Collective Bargaining Clause does not include these words, it applies to private parties as well. However, we do not believe this argument to be correct. The rule of construction articulated above applies equally to all clauses in the Bill of Rights, regardless of whether they specifically refer to the government.

If the plaintiff’s interpretation were correct, then the guarantees Bill of Rights would be strikingly inconsistent. It will be noted that the Due Process Clause begins with the words, "No agency of government shall...," while the Collective Bargaining does not. Therefore, if we were to apply the plaintiff’s logic, we would conclude that the former clause binds the government alone, while the latter binds both the government and private parties. Consequently, it would be unconstitutional for an employer to fire an employee for joining a union, but it would not be unconstitutional for an employer to kill the employee. It is highly unlikely that those who framed and ratified the Constitution intended for such an extraordinary inconsistency.

We do not intend to say that the Collective Bargaining Clause only applies to those in public employment. The government may not prevent individuals from unionizing, whether those individuals are in public or in private employment. However, while governments are forbidden from discriminating against union members, private individuals and organizations are not. (Analogously, governments may not discriminate against on the basis of religion, political affiliation, race, sex, or firearm ownership, while private parties may certainly do so.)

Having established that the Collective Bargaining Clause does not impose any obligations upon employers, it becomes clear that the Liberty of Contract Initiative is constitutional. The initiative does not prohibit individuals from joining unions, or from participating in union-related activities. It does not in any way punish those who engage in collective bargaining. Rather, it merely allows employers to hire or not hire such individuals as they please. Under the initiative, if an employer desires to hire only union members, he may do so; and if he desires to hire only non-union members, he may do so. Guaranteeing employers such liberty in no way affects the rights of the employees.
 
As the initiative neither deprives any person of constitutional rights, nor violates any particular constitutional provision, it is sustained.


Statement by the Chief Justice:
Although I was the author of the initiative challenged in the above case, neither party requested me to recuse myself. Accordingly, I decided that it would be appropriate for me to participate.

[Emsworth]

I also believe Emsworth should have had enough mind to recuse himself from the case, or at least make everyone very aware he had written the initiative...

The plaintiff was aware that I was the author of the initiative. He did not ask me to recuse myself. Accordingly, I did not recuse myself.

It will be observed that the jurisprudence of the Supreme Court of the United States is consistent with this decision. "[T]he due process clause of the Fifth Amendment [...] limits only federal governmental action and not that of private parties, as is true of each of the provisions of the Bill of Rights." (Source: The Library of Congress' Annotations to the Constitution) There is no distinction between the Atlasian and the American Bills of Rights that justifies a departure from this general principle.