The Right to Strike as Customary International Law

There has been a dramatic recent resurgence of strike activity in the United States. From auto plants to supermarkets to public schools to fast food outlets, workers around the country have recognized the fundamental importance of strikes—in economic, political, and dignitary terms. Still, judges and legal scholars have had a difficult time establishing that the right to strike, which exists at a statutory level with substantial qualifications, should receive constitutional recognition. There have been isolated instances or hints of judicial support, as well as scholarly contentions that the right may exist in some dormant form.

But arguments to federal courts have regularly come up short, whether based on withholding labor as a due process liberty right; as resisting involuntary servitude; or as engaging collectively in freedom of association. While high profile strikes have become more visible around the world as well as in this country, labor law scholars have acknowledged, at times reluctantly, that the right to strike is not protected under well-settled U.S. constitutional standards.