Federal Service and the Constitution

The Development of the Public Employment Relationship, Second Edition

David H. Rosenbloom

• Publisher: Georgetown University Press
• Year: 2014
• ISBN:
  9781626161498
• Edition: 2
• Topic: Politics & International Relations
• Subtopic: Public Affairs & Administration
• Index: Politics & International Relations

Conceived during the turbulent period of the late 1960s when 'rights talk' was ubiquitous, Federal Service and the Constitution, a landmark study first published in 1971, strove to understand how the rights of federal civil servants had become so differentiated from those of ordinary citizens. Now in a new, second edition, this legal–historical analysis reviews and enlarges its look at the constitutional rights of federal employees from the nation's founding to the present.

Thoroughly revised and updated, this highly readable history of the constitutional relationship between federal employees and the government describes how the changing political, administrative, and institutional concepts of what the federal service is or should be are related to the development of constitutional doctrines defining federal employees' constitutional rights. Developments in society since 1971 have dramatically changed the federal bureaucracy, protecting and expanding employment rights, while at the same time Supreme Court decisions are eroding the special legal status of federal employees. Looking at the current status of these constitutional rights, Rosenbloom concludes by suggesting that recent Supreme Court decisions may reflect a shift to a model based on private sector practices.

CHAPTER ONE

---

The Public Employment Relationship

Historically the relationship between public employees and their governmental employers in the United States has posed nettlesome political, administrative, and constitutional issues. This relationship, generally referred to as the “public employment relationship,” concerns the rights and responsibilities of public employees and their governmental employers. It comprehends all aspects of public sector human resources management. The present study focuses on the constitutional aspects of the public employment relationship.¹ It analyzes the nation’s historical answers to the following questions: Should public employees have the same constitutional rights as ordinary citizens, regardless of their government employment?² Should they have greater rights in some contexts? Or, by contrast, should the federal, state, and local governments have additional authority over them due to the employment relationship? If the latter, what are the constitutional, administrative, and public policy justifications for and limits to treating public employees differently from the rest of the population in terms of such constitutional rights as freedom of speech, religion, association, privacy, procedural due process, equal protection, and Fifth and Fourteenth Amendment liberties? These questions have been answered differently by the federal and state courts in various historical epochs from the founding period to the present day.

Understanding how the constitutional aspects of the public employment relationship have changed over time and why requires a broad journey into US political and administrative history and constitutional law. It involves ideas about electoral politics, public policy and management, the separation of powers, administrative representativeness and political neutrality, and the roles of government in the economy, society, and polity. The “how” and “why” are related because historically both have depended on the prevailing concepts of what public employment and public employees are or should be. The sequential definition and redefinition of the public employment relationship has been a product of substantial and relatively quick political change followed by stability resembling punctuated equilibrium more than linear development or path dependency. Two factors explain much of this history. First, the concept of what a public employee is or should be has been heavily influenced by the ideology of the political parties and movements that gained political dominance during historical periods that defined and redefined national politics. For example, the concept of public employment in the immediate founding period (1789–1828), generally called the era of “gentlemen,” differed radically from the five “spoils system” decades ushered in by President Andrew Jackson in 1829. Second, and related, the public employment relationship is also a product of constitutional law. How judges and justices think about the role of public employees in government, administration, politics, and the polity is a filter that affects the way they analyze and structure constitutional rights in the public employment relationship. Historically there are times when political ideology and constitutional law have been at odds with each other, but the central theme of this book is that, for the most part, constitutional doctrines have reflected the political definition of public employment and public administration adjusts to changing legal doctrines. In other words, the political definition of what public employees are has a major impact on the scope of their constitutional rights within the public employment relationship.

This chapter presents an overview of how the concept of public employment has changed over time, how successive constitutional doctrines regarding the public employment relationship have unfolded, and why that relationship matters. The following eight chapters examine the early development of the public employment relationship (chapter 2) and how it has been affected by the spoils system (chapter 3), the rise of the merit system (chapter 4), the imposition of restrictions on the partisan political activities of federal employees (chapter 5), equal employment opportunity in federal human resources management (chapter 6), the loyalty security programs of the 1940s–1950s and their aftermath (chapter 7), the current judicial framework for defining the constitutional rights of public employees known as the “public service model” (chapter 8), and the concluding chapter, “The Public Employment Relationship Today: Toward Convergence with the Private Sector?”, which considers the Supreme Court’s current tendency to assess the proper scope of public employees’ constitutional rights and those of employees on contract and in collaborative relationships with government with reference to one another. The chapters proceed largely in chronological order, though chapters 5–7 cover developments that occurred in overlapping timeframes. The book focuses on the federal government. However, the constitutional law and doctrines it analyzes apply to public employees at all levels of government, and the political and administrative histories of the states were affected by national developments. The discussion throughout relies on historical works, public documents and records, contemporaneous writings of key actors and observers, and interpretation of legal cases.

Defining Public Employment: A Concise History

Public administration, including public personnel administration, has been defined as science, craft, profession, and art. It is also partly political ideology.³ Successive changes in the locus of political power in the United States have been accompanied by different concepts of what a public employee is or should be. These concepts are largely part of the ideology of dominant political parties, movements, and candidates for elective office. As ideology, definitions of public employment support the overall political interests in terms of elections, power, policy objectives, and programmatic initiatives of those espousing them. At the federal level, public employment has been defined successively in five relatively distinct periods.

Elite Domination

From the founding in 1789 until 1829, federal employment, though limited, was an extension of the dominance of the elites who controlled the national government by holding office as presidents, Supreme Court justices, senators (who were then appointed by the state legislatures), and members of the House of Representatives.⁴ This period was characterized by electoral candidacy and administrative selection based on social class standing, kinship, ethics, and general, rather than technical, ability. The “gentlemen” of this era were a propertied class, and, not surprisingly perhaps, federal employment took on characteristics of private property, sometimes being informally bequeathed to the job holder’s male progeny. Although Presidents George Washington and Thomas Jefferson articulated different visions of how the federal service should be staffed, its elite composition was largely uncontested until Jackson’s election 1828.

An Arm of Political Parties

The spoils system, extending from the Jacksonian era (1829–Civil War) until the introduction of a fledgling merit sys...

Table of contents

• Cover
• Title Page
• Contents
• Preface
• Acknowledgments
• 1 The Public Employment Relationship
• 2 Development of the Public Employment Relationship, 1776–1829
• 3 The Spoils System and the Public Employment Relationship
• 4 Civil Service Reform and the Public Employment Relationship
• 5 Political Neutrality
• 6 Equality of Access to Civil Service Positions
• 7 Loyalty and Security
• 8 Building the Public Service Model
• 9 The Public Employment Relationship Today: Toward Convergence with the Private Sector?
• Bibliography
• Index