Toward a Federal Constitutional Right to Employment

Abstract

This Article outlines a case for an individual federal constitutional right to employment. The Article seeks a middle ground between ignoring basic objections to such a proposed constitutional right, and the trap of focusing prematurely on policy issues that could be most usefully addressed, if not bypassed, in the course of deciding how best to implement such a constitutional right. The Article compares the idea of a federal constitutional right to employment with a hypothetical scenario in which we are considering adopting for the first time a proposed textual constitutional right to freedom of speech. From there, the Article briefly considers some of the major costs, of a constitutional dimension, of involuntary unemployment; some of the classic historical discussions of the values of work and employment; the limited contributions of United States case and statutory law; the work of jurisprudential and human rights theorists; and finally, a number of especially interesting implementation-level concerns, including economic costs; employment rights of non-citizens; and the fascinating issue of gainful employment as potentially diminishing in significance as historic economic progress continues to unfold.