David E. Bernstein, Only one place of redress: African Americans, labor regulations, and the courts from Reconstruction to the New Deal. Durham and London: Duke University Press, 2001. xiii + 191 pages. $39.95 (cloth).

During the years from Reconstruction until the New Deal, African-Americans often were mistreated and generally lived under harsh conditions. The conventional view places much of the blame on markets for failing to protect blacks. According to this view, workers and the poor were protected from markets by progressive labor regulations, such as laws licensing trades and protecting unions. Courts that attempted to preserve markets by using the Constitution to protect freedom of contract – an approach known as Lochnerism (after the case of Lochner v. New York) – are strongly criticized as both harming the poor and interfering with democracy.

In his powerful new book, Only One Place of Redress, David Bernstein, a law professor at George Mason University School of Law, challenges this view of markets, regulation, and constitutional law. Bernstein argues that free markets were not the problem for blacks. African-Americans faced various obstacles to economic success, but markets offered them significant opportunities. Instead, it was government regulation of labor markets that often injured blacks. While it is recognized that expressly discriminatory Jim Crow laws hurt blacks, Bernstein makes the more controversial and important claim that many of the facially race-neutral regulations that were supported by progressives were actually directed at, and injured, blacks. Most provocatively, Bernstein defends the courts’ Lochnerian decisions, arguing that they protected African-Americans when they had no other place to turn.

Bernstein supports his position with a series of case studies of various labor and employment regulations. His first such study – and probably his most original – concerns the regulation of emigrant agents. Bernstein documents in detail how emigrant agents helped African-American workers find better jobs in other states by furnishing information, arranging transportation, and providing capital. Because emigrant agents caused employers to pay higher wages, employers sought to restrain them by persuading legislatures to impose prohibitory taxes and fees on the agents. Although these taxes were facially neutral as to race, they disproportionately harmed blacks, especially rural blacks, who had less information and access to capital than other workers. Exploited by the state legislatures, African-Americans turned to the judiciary for protection, and remarkably, some state courts using Lochnerian arguments struck the laws down as unconstitutional.

Bernstein tells similar stories about other types of labor regulations. He shows that licensing laws were used to keep blacks from pursuing many trades and professions, such as plumbing, barbering, and medicine. Bernstein describes how unions used the leverage they acquired from railroad labor regulations to force employers not to hire African-Americans. He also discusses how prevailing wages laws were passed at the state and federal level in part to prevent nonunionized blacks from undercutting union wages. Finally, Bernstein shows that New Deal labor laws imposed minimum wages that disproportionately caused unemployment among African-Americans.

These thoroughly researched case studies tell a tale about the political process that will be no surprise to readers of this journal. One common thread is the destructive effects at this time of unions, which tried to exclude African-Americans from jobs out of racism and a desire to suppress competition. Employers often resisted these union efforts, since they benefitted from African-American laborers – but labor regulations often gave unions the upper hand. By contrast, the chapter on emigrant agents identifies employers as the source of harmful restrictions. Thus, different concentrated interest groups were able to obtain regulations that allowed them to exploit African-Americans, who were largely disenfranchised and politically weak.

Bernstein strongly supports his claim that many facially neutral labor regulations injured blacks. When it comes to Lochnerian courts helping African-Americans, however, I came away from the book concluding that the judiciary genuinely benefitted blacks, but only to a limited extent. Although some courts reached decisions that helped African-Americans, others did not, and the United States Supreme Court was often in the latter group. For example, in the chapter on emigrant agents, Bernstein states that initially two state Supreme Courts struck down the regulations of emigrant agents, while others approved them. Eventually, though, the United States Supreme Court upheld the laws, which opened the floodgates and led to their enactment and judicial approval in many states, including one of the states where the court had previously found them unconstitutional. Bernstein recognizes this limitation. His response – that the logic of Lochnerism operated to benefit blacks and that the main problem was that judges did not practice it aggressively enough – is well taken and still represents a radical revision of the conventional understanding.

Yet, the courts’ failure to aggressively apply Lochner raises an important issue: To what extent, in the world described by public choice theory, can the courts protect politically vulnerable groups? Bernstein’s history suggests that judges can shield such groups only to a limited degree. After all, in a society where blacks had little political power, it is unlikely that a Supreme Court selected through a political process and responsive, in part, to public opinion would take actions strongly rejected by much of the public. Although some people view the Supreme Court as a heroic guardian of the defenseless, recent scholarship, such as that by Michael Klarman, suggests that this is largely a myth. Nonetheless, Bernstein’s work also shows that the courts are not irrelevant: given that judges are formally insulated from politics and have some desire to apply consistently the principles they announce, it should not be surprising that they sometimes reached different results than the political branches and aided African-Americans. In the end, one might summarize the benefits of Lochnerian judicial review for blacks as "two cheers for Lochnerism."

Finally, one might see Bernstein’s book as a brief for returning to Lochnerism (despite the limits of judicial action), but Bernstein denies that he is arguing that Lochner should be resurrected or even that it would necessarily help blacks today. He states that Lochner might not make sense jurisprudentially, because of the difficulty judges had distinguishing legitimate from illegitimate laws. He also contends that blacks might be better off today in a regulatory environment, because they have access to the ballot box and advantages in the political process as a discrete and insular group. Instead, Bernstein’s main claim is historical: that blacks were harmed by labor regulations during this period and that Lochnerian courts sometimes protected them. This careful and limited approach is characteristic of the book, which tries hard not to go beyond the evidence. Yet, despite the modesty of his claims, Bernstein’s work has wider implications. The history here is important for what it reveals about how market institutions have performed and are likely to function in the future. For example, critics of Richard Epstein’s argument against antidiscrimination laws assert that markets treated blacks poorly during this period, but Bernstein’s evidence supports Epstein’s claim that state action was often the culprit. In the end, then, Only One Place of Redress has significant policy implications, which makes it an even more important contribution.

References:

Klarman, M. J. (1996). Rethinking the Civil Rights and Civil Liberties Revolution. Virginia Law Review 82 (February): 1-67.

Epstein, R. (1992). Forbidden Grounds: Harvard University Press.

By Professor Michael Rappaport, University of San Diego School of Law.  Forthcoming, Public Choice