Blacks and labor—the untold story

KEN I. KERSCH

reprinted with permission from The Public Interest, Summer 2002 

he National Recovery Administration, or "NRA," a linchpin of Franklin Roosevelt's First Hundred Days, did not fare well in the African-American press. "Negro Removal Act," "Negroes Ruined Again," and "Negroes Robbed Again," were only a few of the epithets launched at what many blacks took to be a poisoned spoonful of alphabet soup.  The NRA,a component of the National Industrial Recovery Act (NIRA), was a giant step toward a European-style welfare state: It created national minimum-wage and maximum-hours laws, it guaranteed collective-bargaining rights and industrial production codes, and it poured vast amounts of tax dollars into public-works projects. When, on "Black Monday," the Supreme Court struck down the NIRA as unconstitutional, no one cheered more heartily than American blacks. And when the NIRA's collective-bargaining provisions were later resurrected as part of the Wagner Act, African Americans were dismayed. The National Urban League, the NAACP, and other civil-rights organizations vehemently opposed it.

This history is recounted in Only One Place of Redress: 

African Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal, a recent book by David Bernstein that offers a short and sharp challenge to the pre-

vailing narrative of the emergence of the contemporary American welfare state. Bernstein places labor laws at the center of that development and of the contemporary plight of black Americans. He makes a strong case that many of those ostensibly neutral laws, from Reconstruction through the New Deal—e.g., emigrant-agent laws, professional-licensing laws, prevailing and minimum-wage laws, and collective-bargaining laws—

were either directly aimed at stymieing black economic and social advancement, or, if not so aimed, were quickly turned to that use. The NRA was a classic illustration of this dynamic: It cartelized a huge swath of the American labor market and handed over that cartel power to labor unions from which blacks, with few exceptions, were totally excluded. The American Federation of Labor was one of the most discriminatory, and as it and other exclusionary unions gained power, African Americans were put out of good work, and, in many cases, out of all work. The now longstanding gap between black and

white unemployment rates dates precisely from this moment of government intervention on labor's behalf. In short, Bernstein argues that the victories of organized labor were the undoing of American blacks.

ne Place of Redress chronicles a series of assaults on African Americans that, on the surface at least, lack the moral drama of the patently odious Black Codes and the exhaustively discussed Jim Crow laws of the 1890s. The 1868 ratification of the Fourteenth Amendment, which asserted that "no state shall ... deny to any person the equal protection of the laws," all but guaranteed that the attack would come in low, under the cover of legal neutrality. The author turns first to southern efforts to stem the exodus of blacks out of the region by the passage, at the end of Reconstruction, of a wave

of emigrant-agent laws.  These laws, whose constitutionality was upheld in a series of court challenges, assessed everescalating taxes and licensing fees on employment agents who came to recruit southern (black) workers. Next, the author traces the way in which professional-licensing laws for plumbers, barbers, and doctors, even if not drafted with an "evil eye," were quickly marshaled as weapons to drive blacks out of the respectable and better-paying professions and trades to which they had resourcefully gravitated in the half century following emancipation. Minimum-wage laws cut into blacks' ability to counterbalance racism by offering their labor for lower pay. No assault on black economic advancement, however, was so damaging as the relentless unionization of American railroads. 

Working on the railroads was one of the chief tickets to middle-class status for black men and their families in the late nineteenth and early twentieth centuries. When Woodrow Wilson's progressive administration decided to reach a modus vivendi with the railway unions during the First World War, this door to a respectable, middle-class life began to swing shut. The subsequent passage of the Railway Labor Act of 1926 (an important precursor to New Deal collective-bargaining laws) helped to seal the fate of black railway workers. The Act succeeded where decades of racially exclusionary union constitutions, "race strikes," and physical intimidation had failed, as the unions used their new state-sanctioned power to negotiate racially discriminatory agreements with railroads. While some black railroad workers, most notably those associated with the Brotherhood of Sleeping Car Porters, were able to turn the Railway Labor Act to their advantage, the act's overall effect was to precipitate a steep decline in African-American railroad employment. The U.S. Census reported that between 1920 and 1940, the number of black firemen declined from 6,505 to 2,263.  During the same years, the number of

black brakemen, switchmen, flagmen, and yardmen fell from 8,275 to 2,739, and the number of black trainmen fell from 7,609 to 2,857. These numbers represented declines both in absolute and percentage terms. 

And the pattern repeated itself in other respectable lines of work, most often with the assistance of the federal government. African Americans were cast out of skilled jobs in the building trades by a successful push to unionization. When they fought back by trying to undercut the union pay scale, Congress stepped in and passed the Davis-Bacon Act (1931), This act required all construction contractors with federal building contracts in excess of $2,000 to pay their workers the prevailing wage as determined by the Secretary of Labor (a rate closely tied to the union wage). This ostensibly neutral,

but effectively anti-black, status quo was then locked in by the also ostensibly neutral stabilization agreements of the Second World War. 

hy, one inevitably asks, if Bernstein's account is accurate, did American blacks begin to move toward rather than away from the Democratic party, the party of organized labor, at precisely the time all this was happening? If blacks were so procapitalist, prolimited government, and anti-union, why didn't they stick with the Republicans?

Bernstein has an answer. One should not underestimate, he tells us, the degree to which African Americans took to heart the frank sympathy expressed for their plight by First Lady Eleanor Roosevelt. Empathy alone, of course, was hardly enough. Despite many slights (such as the exemption of agricultural and domestic labor forces, where large numbers of blacks worked, from the New Deal wage standards), blacks as a group benefited materially from FDR's Depression-era public-works programs. The combination of empathy and patronage politics set the pattern for the incorporation of blacks into the ranks of twentieth-century American liberalism.  The rise of affirmative action reveals just how deeply habits of patronage and empathy became institutionalized as part of the New Deal order. The Democrats began the policy and readily embraced its expansion.  But a pivotal moment was reached when the Republican administration of Richard Nixon, despite having concluded that the best way to help blacks economically would be to repeal the Davis-Bacon Act, instead pushed for more affirmative action so as not to anger labor unions. Bernstein argues, in short, that modern American liberalism is a regime of empathy and patronage designed to compensate blacks for the losses they suffered from a succession of highly damaging labor laws.

s a study in political development, Bernstein's book is plausible and provocative. With all the scholarly attention lavished in recent years on the way in which ostensibly neutral laws mask a "disparate impact" on African Americans, one might expect these progressive labor laws to have been put under the microscope. But in an academic field where Beardian constitutional clashes between the forces of light and darkness are the dominant paradigm, such analyses are not likely. Who has thought to ask (as Bernstein does) whether the 1938 Fair Labor Standards Act, which set a national minimum wage, might have played a significant role in the development of a black underclass, or that the great progressive labor movement triumph might have helped to deny American blacks the fruits of the American dream?

To say that academics have downplayed the baleful consequences of key elements of progressive and New Deal reform on black Americans is an understatement. In our grand narratives of constitutional development and the emergence of the American welfare state, central casting has arrayed the oppressed (blacks and labor) acting in solidarity against the (capitalist) oppressor. American blacks' resentment of the heroes of

Steinbeck novels and Woody Guthrie songs and their alliance with employers are acknowledged in footnotes and discussed only in specialized historical studies. For as Plato declared in his Republic, it is one of the chief tasks of the ruling Guardians to "take good care that battles between gods and giants and all other various tales of gods and heroes coming to blows with their relatives and friends don't occur in the stories the people hear and the pictures they see." 

In our professorially crafted public narratives, these battles, if noted, are taken as  fleeting  episodes  of "false  consciousness." Perhaps they did not appreciate it at the time, but soon enough American blacks came to realize that the best hope for their advancement lay in standing side-by-side with the labor movement and giving full support to the interventionist welfare state. And though initial progressive reforms may have had negative effects on blacks, these were only a first step.  Progressives then went on to lead the fight to outlaw discrimination in employment and in labor unions. But Bernstein will have none of it: By the time these victories came about, he argues, it was too late. Blacks became full participants in the labor movement just as broad economic trends had radically diminished the influence and importance of those unions, and

of heavily unionized industries.

Once one is willing to acknowledge the possibility of this clash between gods, a series of long-darkened markers in African-American and constitutional history are newly illuminated.  Suddenly, one can put the socialism of emergent black leaders like A. Philip Randolph and W. E. B. DuBois in perspective.  One can now hear, rather than reflexively dismiss, the strongly procapitalist claims of common black people of the time. One can speak openly of the intense black opposition to the  celebrated 1894 Pullman strike led by socialist Eugene V. Debs.  One can write about both African-American support for the Supreme Court's run of "conservative" opinions in the late nineteenth and early twentieth centuries striking down statutory bans on "yellow dog" contracts (by which, as a condition of their hire, workers agreed not to join labor unions), and of black support for the aggressive wielding of federal court injunctive power against union-led strikes. And one can appreciate the horrified reaction of blacks toward the alliance between state and labor at the time of the New Deal. 

n recent years, many scholars, black and white alike, have come to question the efficacy of the empathy and patronage model for advancing the welfare of African Americans.  Bernstein's uniquely unsentimental account of African-American and labor history is indispensable to serious reflection on these issues, and clears the way for a reconsideration of whether blacks might be better served by the principles of limited government, property rights, and liberty of contract.