In the last few years, scholars have sought to revitalize a range of constitutional arguments against mounting economic inequality and in favor of labor rights. They urge contemporary worker movements to lay claim to the Constitution. But worker movements, for the most part, have not done so. This Essay takes seriously that choice. It examines reasons for the absence of constitutional argumentation by contemporary worker movements, particularly the role of courts and legal elites in our constitutional system, and it contends that labor’s ongoing statutory and regulatory reform efforts are essential prerequisites to the development of progressive constitutional labor rights. This small-c constitutional effort — messy, conflictual, and tedious though it may be — is the constitutional work that prepares the ground for the big-C constitutional change scholars urge.
Andrias, Kate. "Building Labor's Constitution." Tex. L. Rev. 94, no. 7 (2016): 1591-1621.