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In recent years, a number of conservative leaders have begun building relationships with organized labor. Those efforts reached a culmination—but certainly not a conclusion—with Teamsters president Sean O’Brien’s speech at the 2024 Republican National Convention. This turn is grounded in conservative first principles, such as the need to secure labor conditions that can support healthy families.

Many other conservatives have not appreciated these efforts. And they have not been shy about saying so. Alexander MacDonald’s recent contribution to the FedSoc Blog—“Pro-Worker” but Anti-Constitution: A New Labor Framework Raises Serious Legal Doubts—criticizes Sen. Josh Hawley’s recently proposed pro-worker framework outlining forthcoming legislation on labor issues.

MacDonald raises four objections to Sen. Hawley’s labor framework. He frames them as murky “constitutional clouds” rather than concrete accusations of illegality. None of the objections withstand scrutiny.

First, MacDonald takes issue with the framework’s ban on captive-audience meetings—that is, mandatory meetings where employers try to persuade workers to oppose a union drive. Workers have no choice but to attend these meetings or risk being fired. But according to MacDonald, a ban on such meetings would be “dead on arrival” because employers’ free speech rights under the First Amendment would necessarily trump the ban.

This isn’t so. For one thing, a ban on captive-audience meetings doesn’t regulate speech. It regulates conduct: whether employers may make certain anti-union meetings mandatory. Preventing employers from requiring that their employees attend anti-union meetings is not remotely close to preventing employers from speaking against unions at all. Employers will always be perfectly free to oppose union drives. And many do. The problem is the coercion, not the speech. And squarely in line with that principle, the Supreme Court has repeatedly recognized that the First Amendment isn’t infringed by laws that prevent “captive” audiences from being subjected, against their will, to another person’s speech.

Moreover, even assuming MacDonald is right, the First Amendment doesn’t categorically bar content-based speech restrictions. Such restrictions must satisfy strict scrutiny—that is, they must be narrowly tailored to serve a compelling state interest. That bar is cleared here. A ban on captive-audience meetings is narrowly tailored because employers have many ways of communicating their opposition to unions besides captive-audience meetings. They can distribute literature, display posters, and so on. And a compelling state interest is in play: Congress long ago made clear that “encouraging the practice and procedure of collective bargaining” is the policy of the United States.

Second, MacDonald warns of potential “constitutional issues” with the framework’s expanded approach to civil penalties, suggesting that new rights of action might trigger the right to a jury trial. There is actually less disagreement here than MacDonald seems to think. From a pro-worker policy standpoint, resolving more labor disputes through jury trials is a good thing. If the NLRB doesn’t act on their grievances, workers wronged by their employers should be able to present their claims in open court, before a jury of their peers, and recover damages. The framework’s approach is not meant to replace the NLRB’s, but by providing for new legal remedies that must be sought in Article III courts, it supplements the Board’s administrative approach.

Third, MacDonald complains that the framework would unfairly “impose” arbitration in the process of initial labor contract formation. But this is simply a misunderstanding of how the framework operates.

For background, after workers vote to form a union, the process for obtaining an initial labor contract can take years. Unscrupulous employers have a powerful incentive to drag out the process as long as possible, since they can later petition to decertify the election if there’s been enough turnover in the workforce.

In light of this problem, what’s needed is some mechanism to speed the process of contract formation. This doesn’t exist under current law. Enter the framework, which specifies that if it takes too long to reach a contract on a set timetable, the union and employer will proceed to mediation and, later, binding arbitration if all else fails. But critically, this arbitration provision kicks in only if free and fair negotiations between the new union and the employer break down. Ideally, arbitration would never happen at all. That’s why it’s a mistake to talk about the framework “imposing” interest arbitration. Arbitration is merely one mechanism that serves as a final backstop.

Finally, MacDonald invokes “constitutional doubts,” under the Due Process and Equal Protection Clauses, about the framework’s warehouse worker protection provisions. Specifically, MacDonald alleges that the provisions are suspect because they apparently target only a specific company (Amazon).

That claim is meritless. For one thing, MacDonald is wrong on the facts. The framework isn’t tailored to Amazon alone. There are a lot of warehouse operators in this country, and Amazon is merely one of the most prominent. And even if he were right on the facts, he’s wrong on the law. Earlier this year, the Supreme Court upheld legislation targeting a single tech company (TikTok) by name. In the decision below, the D.C. Circuit considered and rejected analogous equal protection arguments by TikTok, reasoning that “singling a company out . . . does not amount to an equal protection violation if doing so furthers an appropriate governmental interest.” Protecting warehouse workers is, no doubt, an appropriate governmental interest. That’s why OSHA exists, after all.

In sum, Sen. Hawley’s labor framework falls well within the American constitutional tradition—a tradition that, at its best, has recognized the rights of both employers and workers, and within which leaders have legislated as necessary to correct imbalances.

I suspect in the end, though, the questions involved here are more about policy than law. It’s hard to miss that this critique of Sen. Hawley’s framework is leveled against the backdrop of longstanding efforts by prominent members of the conservative legal movement—including MacDonald himself—to gut the NLRB entirely, tipping the balance of power even further in the direction of employers.

This trajectory reflects a fundamental misunderstanding of the American tradition, a misunderstanding which has come to permeate large swaths of the conservative legal movement. It is the refusal to accept that the Constitution actually sets up a government whose leaders should serve the public good. The Constitution does not establish a special economic zone where employers’ rights are asymmetrically safeguarded by the coercive force of law and working people are abandoned to the market’s tender mercies.

The goal of the conservative legal movement cannot be the wholesale destruction of government as such, under the banner of “dismantling the administrative state.” Shuttering oppressive bureaucracies is one thing. Crippling the state in all its efforts to influence economic life is quite another. Conservative legal thought must be able to explain what the government should do, not merely what it may not. And yet for too long, where markets are concerned, the conservative legal movement has emphasized only the latter.

It is time to chart a better course. Exchanging an administrative state for a plutocratic state is just as great a distortion of our constitutional tradition as anything Chevron ever put into motion. The Constitution isn’t just for corporations, but for working people too.