I'VE repeatedly argued that private- and public-sector unions operate in different institutional settings, raise fundamentally different moral and political questions, and that it is altogether reasonable to support private-sector unions while rejecting public-sector unions on account of the nature of their differences. A common response I've heard from the left is that I'm slyly seeking to sow discord by disingenuously arguing that the larger union movement is not in fact one, but is instead a coalition of fundamentally distinct organisations of unequal moral standing. A common response I've heard from the right is basically the same: "you don't really support private-sector unionism, do you"?

Well, I do. Sort of. It's complicated because American labour law is complicated.

The right of workers to band together to improve their bargaining position relative to employers is a straightforward implication of freedom of association, and the sort of voluntary association that results is the beating heart of the classical liberal vision of civil society. I unreservedly endorse what I'll call the "unionism of free association". My difficulty in coming out wholeheartedly for private-sector unions as they now exist is that they are, by and large, creatures of objectionable statutes which have badly warped the labour-capital power dynamic that would exist under the unionism of free association.

Progressives and libertarians generally part ways on the justifiability of legislation that boosts the bargaining power of unions. Progressives generally think, not implausibly, that government has already put a thumb on the scale in favour of employers through the legal definition of the character and powers of the corporation, such that it is manifestly unjust for government to fail to put an equalising thumb on the scale in favour of unions. For now I only want to say that I think there is indeed a plausible case for government stepping in to help strengthen workers' bargaining power when inequalities in such power (often created by law and legislation) lead to a systemically unfair division of the gains from productive cooperation. I don't think the same plausible case applies to public-sector unions for reasons I've recited ad nauseam.

So, do circumstances merit a further statutory boost for private-sector unions? I don't know. Rather than become mired in largely intractable metaphysical disputes over fairness of the division of the cooperative surplus, which we would need to do in order to determine whether government should do more to augment union power, I believe it would be much more productive to focus on the ways in which the prevailing legal regime clearly handicaps labour relative to the power unions would have under conditions of free association. I heartily agree with Kevin Carson, a left-libertarian theorist and activist, when he argues that:

[T]he room for change lies mainly, not with adding further economic intervention to aid labor at the expense of capital, but rather with eliminating those policies which currently benefit capital at the expense of labor. The question is not what new laws would strengthen the bargaining power of labor, but which existing ones weaken it. ... The most obvious forms of state intervention that hobble labor are legislation like: 1) The provisions of Taft-Hartley which criminalize sympathy and boycott strikes; 2) The Railway Labor Relations Act and the “cooling off” provisions of Taft-Hartley, which enable the government to prevent a strike from spreading to common carriers and thus becoming a general strike; and 3) “Right-to-Work” (sic) laws, which restrict the freedom of contract by forbidding employers to enter into union shop contracts with a bargaining agent. Further, we should examine the extent to which even ostensibly pro-labor laws, like the Wagner Act, have served in practice to weaken the bargaining power of labor. Before Wagner, what is today regarded as the conventional strike—an announced walkout associated with a formal ultimatum—was only one tactic among many used by unions.

Mr Carson then goes on to enumerate some of those now-rare tactics, which, taken together, add up to a compelling case that a return to the unionism of free association would improve the bargaining position of labour relative to the status quo.

It is in this light that I wish to join the Washington Examiner's Tim Carney in congratulating Mitch Daniels for his opposition to the "right-to-work" legislation proposed by Indiana Republicans. Presidential, indeed.