The act of amending a constitution, whether it be a state constitution or the federal one, is an act that should not be considered lightly. These documents are the building block foundation of our system of government. At the state level in Virginia, they represent the express will of the people, acting directly and not through their elected representatives, because to be effective, they must be adopted by a vote of the entire Commonwealth. Thus, every new item in the Virginia Constitution since its re-codification and adoption in 1970 has come before the people.
On the ballot this fall is an amendment that would place Virginia’s “right to work” law in the Commonwealth’s Constitution. I wish that I could say that this was an amendment that was being moved for policy purposes, or that it was an amendment that was designed to address a serious concern here in Virginia. I wish the I could say that this was anything more than political theater run amok. I can’t, because this amendment – like so much of what has been happening both in Washington and in Richmond – is nothing more than politics masquerading as a legitimate, real concern.
Virginia’s right-to-work laws are not in any danger of being repealed, and there is no active campaign to end them, either at the state or the federal level. This is a solution in search of a problem. Further, there is no need to lard up the Virginia Constitution with policy provisions that are not fundamental to the running of the government. The Constitution already contains a number of provisions that do not necessarily belong in a state Constitution – adding more is just unnecessary. Regardless of whether you support right-to-work or oppose it, we all should be hesitant to bake into our founding documents policy provisions that do not directly impact how government is supposed to operate or otherwise protect fundamental rights. Despite its name, the “right-to-work” as this law codifies it is not a fundamental right, nor should it be, since it effectively allows the government to directly interfere with what was long considered a fundamental right (but is no longer) – the right to contract.
Since 1947, Virginia has been a “right-to-work” state. Under Virginia Code §§ 40.1-58 through 40.1-69, no Virginian can be denied or abridged the right to work by virtue of membership or non-membership in a labor union or labor organization. You read that correctly – since 1947. Since the high days of the Jim Crow era, when the Democratic Byrd machine ran the Commonwealth through to the modern era today, right-to-work has remained the law in Virginia. Even now, Governor McAuliffe has gone on record supporting right to work  and arguing against any changes to it. McAuliffe’s support, along with that of the House of Delegates, where right-to-work supporters have a super majority and the Senate, where Republicans remain in control, ensures that there will be no touching of Virginia’s right-to-work laws, even if anybody was mounting an active campaign for their repeal.
So why now? And why the Constitution?
One of the arguments made is that because Attorney General Herring has declined to defend other Virginia laws he’s disagreed with, he may decline to defend right-to-work. Adding it to the Constitution would make it harder for him to do that, according to proponents. This argument makes little sense. Just look at the Marshall-Newman Amendment, which codified marriage as being between one man and one woman. It was added to the Constitution via the amendment process in 2006. That didn’t even phase Mark Herring, who wasted no time declining to defend it in Court . Adding right-to-work to the Virginia Constitution gives it no more gravitas than it has now.
Another argument is that this makes it harder for future General Assemblies to change the law. That’s true – the process of amending the Constitution requires a bill to be passed in two separate sessions of the legislature and then be submitted to the people for approval. It would make sense to try to push this through if there was a legitimate fear that right-to-work was in danger. It’s not. Democrats passed the law in the first place. Even when they’ve controlled the General Assembly, the Courts and every statewide office, right-to-work has remained sacrosanct. Democrats don’t even waste time proposing right-to-work repeals in the General Assembly anymore. Even if the General Assembly should shift back to Democratic control – which is exceedingly unlikely until at least after the next census – the chances that they would push to end right-to-work are almost nil.
In Virginia, the older a law is, the more power and more deference it receives. A law that has been on the books since 1947 – longer than the current iteration of the Virginia Constitution itself – is not going anywhere. To claim otherwise is just not realistic. Right-to-work remains popular, and there is little chance that it will be repealed any time soon. Thus, going to such lengths as to amend the Constitution to protect it is like building another moat around the moat around your castle. It might make you feel better, but in the end it’s just a complete waste of time and effort.
While there is no need to debate the merits of right-to-work here because that’s not the point of this article, I will say that Republicans used to care about the right to contract. This kind of state interference with the right to contract is exactly the kind of big government interference with the free enterprise system that Republicans are supposed to oppose. But since the target here are unions – the perennial GOP bugaboo – we ignore our Creed and our belief that government should get out of the way of the private sector. Instead, we put government’s thumb on the scale, telling workers and employers what they can and can’t do. Republicans should be opposing this kind of law on principle, but we don’t.
Virginia’s Constitution, which includes such fundamental statements of the rights and liberties of all Virginians as George Mason’s Virginia Declaration of Rights, doesn’t need to be burdened with extraneous policy statements. Doing this will simply embolden the General Assembly to amend the Constitution in other ways to protect state laws. The Constitution already includes a number of provisions of dubious Constitutional merit – for example, it specifically protects oyster beds in Virginia waters from lease or sale in a provision that was added sometime between 1871 and 1902. The oystermen must have had one heck of a lobby back then. Adding another trivializes the document.
Whether you support or oppose right-to-work is immaterial. It remains the law of the Commonwealth and it is in no danger of being repealed or otherwise removed. There is no reason to add it to the Constitution of Virginia, and there are plenty of reasons not to, especially the precedent it sets.
Political theater is an inevitable part of politics, but there are some things that shouldn’t be done simply for their theatrical or fundraising value. Frivolously amending the Constitution of Virginia is one of them.