Blacks and labor—the untold
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
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
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.