Bargaining rights appear in the constitutions of a handful of states. In most, the constitutional text is sparse. It usually includes only a single sentence, often declaring nothing more than that the right to bargain exists. Courts in some states, like New York, have interpreted those brief statements to shield employees from discrimination or retaliation, nothing more. But others, like courts in New Jersey and Missouri, have gone further. Not only have they interpreted the text to protect the right to organize and bargain without interference; they have also imposed an affirmative obligation on employers to bargain in "good faith." These courts reason that if employees have a right to bargain, then employers must have a corresponding obligation to bargain as well. After all, bargaining requires two parties.In this article, I argue that this more expansive approach is wrong in three ways: First, it's wrong as a matter of text. The text in these constitutions says nothing about employer obligations; it speaks only about employee rights. Courts have found an employer obligation only by going beyond the text. They've reasoned that without an employer obligation, the bargaining right would be meaningless. But that rationale clashes with the way courts have interpreted similar constitutional provisions. For example, citizens have a First Amendment right to petition the government. But the government has no obligation to listen. And no one would say that the right to petition is meaningless as a result. Second, it's wrong as a matter of history. The New Jersey and Missouri constitutions were amended to include the right in the 1940s. At the time, lawmakers across the country were curtailing union activity through legislation, such as right-to-work laws. The proponents of the amendments saw their efforts as the only way to preserve the common-law right to organize and select a bargaining representative. This right preexisted the amendments; the proponents wanted only to preserve it. And importantly, the common-law right included only a negative right against interference. It did not include a positive right to force employers to the bargaining table. By expanding the right to include an affirmative obligation, courts have stripped the amendments of their historical context.Third, it's wrong as a matter of judicial policy. When courts order employers to bargain, they have to police not only bargaining itself, but also everything else that goes along with bargaining. They have to define appropriate bargaining units, oversee elections, resolve eligibility disputes, and identify appropriate bargaining subjects. And they are institutionally ill-suited to do those things. They have no staff to run elections, no experience with bargaining units, and no standards for resolving eligibility disputes. And given the sparse constitutional text, they have to just make it up as they go along. It would be much better to leave those decisions to legislatures. Unlike courts, legislatures can draw clear lines, establish orderly procedures, and delegate daily administration to agencies. When courts constitutionalize bargaining, they take those options off the table. You could be forgiven for thinking that this broad approach hurts only employers, who are forced to the bargaining table under a tenuous legal theory. But in fact, it more often hurts dissenting employees. Properly interpreted, the bargaining amendments protect each employee's individual right to select a bargaining representative. But in a rush to force employers to bargain, courts have overlooked that aspect of the amendments. These courts recognize that it would be hard, if not impossible, to force employers to bargain with more than one union. So they import a concept from federal law: exclusive representation. They designate one union as the representative of every employee, even employees who would prefer a different (or no) representative. That approach may make for easier administration, but it clashes with the rights of individual dissenters. In other words, in their haste to expand constitutional bargaining rights, courts are in fact undermining them
