The Supreme Court ruled 5-4 last week that it is unconstitutional for public-employee unions to collect fair-share fees — fees charged to non-members to cover the cost of representing them in collective bargaining and other matters. The decision in Janus v. AFSCME was expected but bizarre.
The court’s majority, after all, are supposed to be originalists who insist the Constitution means what the framers wrote over 200 years ago. Conservative legal critics are likely to mock the idea, expressed by the late liberal justice William O. Douglas, that “emanations” from the text of the Constitution form a “penumbra” in which other rights – such as a right to privacy – can be found.
Yet the five conservative justices looked at the First Amendment, with its five freedoms – of speech, religion, the press, assembly and to petition of the government — and found a sixth in its penumbra:
The freedom to free-ride on union members who willingly pay dues for what they get. Continue reading