Draft: Forthcoming, George
Mason Law Review
Review of David E. Bernstein, Only One Place
of Redress: African Americans, Labor Regulations,
and the Courts from Reconstruction to the New Deal
David T. Beito
Associate Professor
Department of History
University of Alabama
Box 870212
Tuscaloosa, AL 35487
(205) 484-1870
This is a wonderful book. If
historians are willing to listen, Only One Place of Redress can transform
their understanding of the black experience in America since the Civil War.
At the very least, it should force scholars to confront long held, but
rarely examined, assumptions about the role of government, the market, and the
courts. Though not trained as a
professional historian, David E. Bernstein, a law professor at George Mason
University, demonstrates a good command of the relevant historiography.
More importantly, he proves more than equal to the task of evaluating, in
clear and concise prose, the strengths and weaknesses of this scholarship.
For decades, historians have been unforgiving when discussing judicial
activism during the late nineteenth and early twentieth centuries.
Their most common charge is that courts manipulated precedent, through
misuse of the due process clause of the Fourteenth Amendment, to bolster the
interests of capital. These
historians argue that the courts, by doing this, left workers and the middle
class at the mercy of an exploitive market.
They particularly castigate the Supreme Court's 1905 ruling in Lochner
v. New York striking down a law limiting the working hours of bakers.
Bernstein paints a much brighter picture of Lochnerian jurisprudence.
He contends that many ordinary people, including racial and ethnic
minorities, found it to be their only defense against legislation that limited
their ability to better themselves in the market.
As politicians in the North abandoned them, and Southern politicians
waged war on their rights, the courts gave them at least a modicum of
protection.
Even before Lochner, a few lower courts were upholding the
"liberty of contract" rights of blacks.
Some of the earliest cases dealt with emigrant agents.
After the Civil War, business and agricultural interests in search of
labor sent "agents" to the South to persuade (and aid) the freedmen to
leave. Many historians have
dismissed these activities as purely exploitative.
Bernstein, by contrast, stresses how the agents helped blacks by
providing “guaranteed employment, ensuring that migrants could leave their old
jobs without fear of arrest for vagrancy.” (10)
The attitude of planters offers the best confirmation for the accuracy of
Bernstein's depiction. They sensed
that the activities of emigrant agents posed a direct threat to their control of
the Southern rural labor market. Beginning
in the 1870s, planters successfully pressed politicians to initiate a crack
down. Southern states enacted
legislation that impeded the work of emigrant agents through special taxes and
other regulations.
Ironically, it was a Southern court that struck down one of the earliest
laws. In 1882, the Alabama Supreme
Court ruled that an emigrant law violated “personal liberty” and impaired
“freedom of emigration” (14). The
North Carolina Supreme Court issued a similar ruling in 1893 but few others
followed suit. In 1900, the U.S. Supreme Court closed the door to further
challenges. In Williams v. Fears,
it upheld the constitutionality of an emigrant agent law.
As Bernstein points out, the Court, still some years away from adopting
Lochnerian jurisprudence, “remained extremely reluctant to rely on amorphous
constitutional theories to overturn state legislation on Fourteenth Amendment
grounds” (23). Given a green
light by the U.S. Supreme Court, several other states imposed measures against
emigrant agents.
For blacks, the results were tragic.
Citing data gathered by economic historians, Bernstein shows that
emigrant agent laws threw many roadblocks against labor mobility.
This legislation proved especially harmful to those blacks in rural areas
who were most in the need of the services of agents.
In part because of the barriers erected by emigrant agent laws, the
majority of black migrants to the North during the 1910s and 1920s came from
Southern cities and towns, not the countryside.
Despite Williams v. Fears, Bernstein cites a growing body of U.S.
Supreme Court precedent that advanced the freedom of contract rights of blacks
such as In re Debs. In that
1895 case, the Supreme Court upheld a labor injunction against a railway strike
led Eugene V. Debs. Bernstein
convincingly challenges Derrick Bell's assertion that the Court's decision
“denied rights to labor” (54) noting that the railway union had barred
blacks from most of the best jobs on the railroad.
Thus, In re Debs brought substantial gains for minorities because
it opened up jobs that had previously been closed to them.
Subsequent court rulings upholding yellow contracts requiring workers to
pledge not to join unions had a similar effect according to Bernstein.
The cumulative result was to prevent “the federal government from
implicitly continuing to aid the railroad unions’ quest to monopolize the
railroad labor market at the expense of African American workers” (55).
Lochner and related decisions overturning restrictions on wages
and hours also contributed to the economic betterment of blacks.
These rulings weakened the power of skilled and unionized workers, who
happened to be mostly white, to shut out unskilled and nonunion workers, who
were often black. Bernstein asserts
that they fostered a flexible labor market which gave more economic options to
the politically disfranchised.
The author finds no irony in the fact that Lochnerian jurisprudence
benefited blacks. It represented a body of law that can be traced directly to
“the abolitionist natural rights and ‘free labor’ tradition, and
opposition to the ‘class legislation’-legislation that aided politically
powerful interest groups at the expense of the public at large” (3).
Many blacks seemed to appreciate this legal trend.
Through the 1920s, they remained overwhelmingly hostile to labor unions. Despite their other disagreements, Booker T. Washington and
W.E.B. DuBois spoke with almost a single voice in castigating organized labor as
an enemy of the race. Though a few
unions admitted blacks, these were the exceptions. In 1933, for example, only about fifty thousand were members
compared to nearly 2.5 million whites. As
a result, blacks were often prominent in the ranks of workers used to replace
strikers. Many found that
employment as "scabs" helped them to enter new occupations for the
first time. Through this method,
blacks "broke into the meatpacking industry following a strike in 1921, the
coal industry after a Pennsylvania strike in 1922, the metal trades in Detroit
after a strike in 1921, brickmaking after a New Jersey strike in 1922, and
railway shop employment after a strike in 1922" (91-92).
Depression era legislation, though officially colorblind, was often
highly discriminatory. A case in
point was the Davis-Act requiring construction firms with federal contracts to
pay "prevailing wages." As
defined by the Department of Labor, the prevailing wage usually equaled the
union wage thus freezing low-skilled black workers out of many projects.
As Bernstein points out, "contractors had every incentive to hire
unionized workers for skilled positions. Union
members were generally the best-trained workers, and they could be hired quickly
and efficiently through union hiring halls" (80).
Many backers of Davis-Bacon did not hide their racist goals.
The testimony at the hearings for the bill by William Green, the
president of the American Federation of Labor, was a clear example.
Green praised the proposed law because it would make it more difficult
for contractors to "demoralize" wage rates through use of low-wage
"[c]olored labor" (77)
Bernstein does not pull his punches when discussing the National
Industrial Recovery Act of 1933. Had
it survived the Supreme Court test, he predicts, it might have condemned blacks
to "permanent second-class and economic status" (86).
Most obviously, the minimum wage imposed by the National Recovery
Administration (NRA) priced many blacks out of the labor market. A defender of the law estimated that these provisions alone
destroyed the jobs of half a million blacks.
Perhaps the most discriminatory part of this legislation was Section 7A.
It enabled certain unions (most notably, of course, the overwhelmingly
white AFL) the exclusive bargaining agents in many industries.
Black leaders across the political spectrum opposed Section 7A including
DuBois and Kelly Miller. In 1934,
an editorial in The Crisis (the newsletter of the NAACP) described a
typical scenario: "Seeking to avail itself of the powers granted under
Section 7A of the NRA, union labor strategy seems to be form a union in a given
plant, strike to obtain the right to bargain with the employers as the sole
representative of labor, and then to close the union to black workers,
effectively cutting them off from employment" (93).
The Wagner Act of 1935, which survived the scrutiny of the Supreme Court,
permanently enshrined many of the collective bargaining provisions of the NRA.
It significantly expanded the closed union shop which, as future NAACP
head Roy Wilkins stated, was all too often a white union shop. Bernstein
acknowledges that Act also fueled the growth of the more racially egalitarian
Congress of Industrial Organizations (CIO).
At the same time, he casts doubt on much popular mythology in labor
history. Though some CIO organizers
sincerely opposed discrimination, others recruited black workers simply because
they were too numerous to ignore. Under
the rules of the Wagner Act, black votes often meant the difference between
defeat and victory in union recognition elections.
By the 1950s, the CIO had shed much of its initial racial egalitarianism.
When it merged with the AFL in 1955, it did not even bother to demand
that the AFL adopt a nondiscrimination policy.
The minimum wage provisions of the Fair Labor Standards Act were
especially antagonistic to the interests of blacks. The nationwide floor on all
wages eliminated thousands of jobs in the low-wage South where most blacks
worked. According to a report of
the Labor Department in 1938, Bernstein relates that "between thirty
thousand and fifty thousand workers, mostly southern African Americans, lost
their jobs because of the minimum wage within two weeks" (101) after
the Act went into effect. Bernstein finds it ironic that these New Deal laws
"began to push African Americans into northern industrial areas" just
as these areas were entering "an era of steep relative economic
decline" (104). The long term
consequence was "a significant, persistent increase in African American
unemployment" and "the development of the urban 'underclass'"
(105)
Bernstein's closes with a provocative and highly original analysis of the
post-New Deal Supreme Court. He
disputes Bruce Ackerman and other scholars who portray federal interventionism
during the New Deal as setting the stage for later civil rights measures.
The chief problem with Ackerman's claim is that events in the New Deal
period itself do not bear it out. As
Bernstein shows, the Roosevelt administration expressed little interest in civil
rights during the 1930s and seemed even less concerned than previous
administrations about the need for anti-lynching legislation.
For Bernstein, the later willingness of the federal government to enforce
civil rights can be traced to other developments during the 1940s and 1950s
including "World War II, the cold war, and the migration of millions of
African Americans to northern cities" (107).
Could civil rights have arisen from the precedents established by Lochner?
Bernstein thinks that the answer is yes:
Lochnerian
jurisprudence, had it survived the New Deal, could have been a potent weapon
against segregation laws. Many of
these laws, after all, restricted freedom of contract by preventing voluntary
transaction between whites and African Americans....Indeed when segregation laws
were spreading during the 1890s, civil rights activists argued that the laws
constituted illicit class legislation....Just as prosegregation decisions were
not implicit in Lochnerism, Brown was not implicit in the New Deal's
commitment to activist government (108).
Hopefully, Only One Place of Redress will soon be published in
paperback. The short length (only
117 pages of text) and lucid prose would make it an excellent choice for both
graduate and undergraduate courses. If
brevity is one of the strengths of the book, it is also a weakness.
After finishing, readers (like this one) will come away feeling
tantalized but wishing for more. This
book should be required reading for historians in black and labor history as
well as historians of the Progressive Era and New Deal periods.