Vol. 11 No. 5 (May 2001) pp. 243-248.

ONLY ONE PLACE OF REDRESS: AFRICAN AMERICANS, LABOR REGULATIONS, AND THE COURTS FROM RECONSTRUCTION TO THE NEW DEAL by David E. Bernstein. Durham: Duke University Press, 2001. 189 pp. Cloth $39.95. ISBN 0-8223-2583-7.

Reviewed by Brian K. Landsberg, University of Pacific McGeorge School of Law.

This slender volume (117 pages of text) by a law professor at George Mason University Law School argues that, for most of the period from Reconstruction to the New Deal, the courts were the one place of redress for African Americans. However, they almost completely failed to provide that redress. Bernstein advances a robust thesis, in essence arguing that government intervention in economic relations has tended to disadvantage African-Americans. This thesis has the effect of providing a new rationale to justify judicial activism in reviewing laws that regulate economic relations. He considers the history of labor law from Reconstruction to the New Deal in light of his thesis. Although the plausibility of his argument is undermined by his failure to consider alternative explanations or to closely examine the underlying constitutional issues regarding the role of the Supreme Court or the meaning of the due process clauses of the Fifth and Fourteenth Amendment, the book advances the dialogue about the causes of and cures for racial discrimination in America.

The Introduction briefly sketches some of the underlying case law, with a focus on LOCHNER v. NEW YORK (1905). Bernstein approvingly refers to "Lochnerian judges," who, he argues, "relied primarily on two long-standing American intellectual traditions that heavily influenced American conceptions of liberty and the proper role of government in the postbellum era when the Fourteenth Amendment was framed: the abolitionist natural rights and 'free labor' tradition, and opposition to 'class legislation'-legislation that aided politically powerful interest groups at the expense of the public at large." Although he clearly prefers a so-called free market to government regulation, his point in this book is more particular, "that Lochnerian jurisprudence, when applied, protected African Americans from facially neutral legislation that restricted their access to, and mobility in, the labor market." The remaining chapters follow a consistent format: lay some background about the plight of African-Americans, describe a law or set of laws that regulates some form of economic activity, show how that legal regime may have been motivated by racial animus and how it disadvantages African Americans, and summarize case law dealing with the law or laws under discussion.

Chapter 1 describes the adoption by some southern states of laws heavily taxing emigrant agents, as a means of keeping African American workers. Initially held unconstitutional in "Lochnerian" [but pre-LOCHNER] cases, these laws were ultimately upheld in WILLIAMS v. FEARS (1900). The result was that poor African Americans in rural areas found it more

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difficult to migrate to places with enhanced economic opportunities, while local white landowners were guaranteed a continued source of cheap labor.

Chapter 2 turns to a discussion of licensing laws. Bernstein points to YICK WO v. HOPKINS (1886) as an early licensing law used to exclude both arbitrarily and on account of race. However, he notes that the Supreme Court upheld laws requiring licensing of physicians and dentists. He complains that the Court passed up "the opportunity to put some limitations on the practices of licensing boards," instead giving "carte blanche" to legislatures as long as licensing laws were non-discriminatory and "not wholly arbitrary." He ignores limits on the Court's jurisdiction: the plaintiff's sole contention in challenging the licensing law was "that the statute purports to confer upon the board arbitrary power to exclude applicants from the practice of dentistry...."

Bernstein's thesis here is, "Judicial deference to licensing laws allowed racist white unions and professional organizations to monopolize certain professions." He provides graphic examples of licensing of plumbers, barbers and physicians. Each licensing scheme led to a decline in the number of African-Americans lawfully pursuing the trade or profession. There is evidence of racially discriminatory intent underlying some of these licensing laws, and occasionally a court invalidated such laws. For example, he mentions a 1927 decision of the Georgia Supreme Court invalidating a facially discriminatory barber ordinance. He concludes, "Had the courts been more willing to scrutinize closely the purpose and effect of these laws to ensure that they did not unreasonably interfere with the right to pursue a lawful occupation, African American workers would have greatly benefited."

Chapter 3 considers a significant area of African American employment, the railroads. African Americans initially were allowed to work in several job categories on railroads. The unions opposed African American employment on railroads and excluded African Americans from membership. Bernstein graphically describes the ugly history of union strikes and violence to exclude African Americans from employment, as well as successful union efforts to convince state and federal governments to adopt rules to do so. Some of those rules were racially discriminatory on their face. For example, Bernstein says that in 1919 the Federal Railroad Administration agreed to a new rule: "Negroes are not to be used as conductors, flagmen, baggagemen, or yard conductors." Other rules, such as licensing standards requiring applicants to pass a literacy test, were adopted with the purpose of exclusion of African Americans.

Bernstein views the labor injunction as working "to the benefit of African American railroad workers." He thus reduces IN RE DEBS (1895) to a decision that, by ending not only the Pullman Strike but also the union itself, protected African-Americans from "being excluded from an extremely powerful labor union with influence in most railroad occupations." Bernstein seems to follow the maxim: "the enemy of my enemy is my friend." Since labor unions were anti-African American, anti-labor decisions must be pro-African American. Undoubtedly African Americans did receive some immediate unintended benefits from some anti-labor decisions, and in one instance cited in the book the labor injunction was specifically based on the right of an employer to hire African Americans. Bernstein is dismissive of the

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notion, implicit in Derrick Bell's work, that the judicial policies underlying such decisions as DEBS might harm rather than benefit African Americans, and he also rejects William E. Forbath's (1991) suggestion that it is a "rich irony that the strongest precedents for [modern civil rights injunctions] would spring from the uses that the federal courts had made of the Federalist legacy and the fourteenth amendment a half-century earlier against the labor movement...."

Bernstein ignores the fact that the labor injunction indiscriminately repressed both racist unions and unions, such as the Knights of Labor and, later, the Congress of Industrial Workers, that welcomed African American members. His case descriptions focus on the impact of the decision rather than analyzing the reasoning that led to the result in the case. Historians and political scientists may be comfortable with this approach, but legal scholars most likely will not.

Legislation in the late 1920s and early 1930s brought the indiscriminately issued federal labor injunction to an end. Bernstein argues that this strengthened the white railway unions, to the detriment of African Americans. Bernstein minimizes the significance of STEELE v. LOUISVILLE AND NASHVILLE RAILROAD (1944), which imposed a duty on the railroad unions to fairly represent black workers. He says STEELE both came too late, after African American employment on railroads had drastically declined, and "did not effectively reduce discrimination in railroad employment." This is a conclusion others, not cited in this book, have also reached. For example, Derrick Bell (2000) concluded that the duty of fair representation "has had little impact on employment discrimination." The chapter concludes, "In no other industry did the abandonment of Lochnerian jurisprudence by the courts and the establishment of government intervention in the labor market have such disastrous results for African Americans."

In Chapter 4 Bernstein argues that prevailing-wage laws significantly disadvantaged African Americans. He portrays the Davis-Bacon Act as "the culmination of a decades-long effort by construction unions to exclude outsiders from public works projects." He argues that the trades unions' major goals of an eight-hour workday and a reduction in competition from members of minority groups "were often intertwined." Some statutes were explicit in their racism. For example "early Oregon and California statutes banned the use of Chinese laborers on public works projects...." Courts invalidated these laws, but the Supreme Court upheld prevailing wage laws, which "did not explicitly discriminate based on race or alienage, but had discriminatory effects." Bernstein is critical of these decisions, which he views as inconsistent with LOCHNER, but he does not spell out a legal argument against them. He rejects then-New York Court of Appeals Justice Cardozo's view that such laws prevented the "merciless exploitation of the indigent or the idle." Bernstein instead opines, "In Cardozo's view, then, the indigent or idle were apparently better off staying that way than accepting a job at less than the union wage."

Bernstein spells out in some detail the well-known history of exclusion of African-Americans from most construction trade unions, though he makes no reference to the modern fair employment cases, such as the LOCAL 28 case (1986) that document that history. Finally, he focuses on the main

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target of this chapter, the Davis-Bacon Act of 1931. Representative Bacon of New York had first proposed the act after an Alabama contractor using law paid African-American workers won a federal contract for a project in Bacon's district. The legislative history is replete with references to the race of many of the workers being imported to northern states to work on federal contracts, but also with references to their low pay. For example, Mayor LaGuardia complained, "These unfortunate men were huddled in shacks living under most wretched conditions and being paid wages far below the standard. These unfortunate men were being exploited by the contract." As Bernstein points out, the Davis-Bacon Act's "discriminatory effects were subtle but real. The only recourse African Americans had in a labor market dominated by exclusionary unions that demanded above-market wages was their willingness to work for less money than the unions." This critique typifies Bernstein's approach. Instead of noting the need for legislation outlawing the exclusion of African-Americans from the construction trade unions, he uses that exclusion as an argument against facially neutral legislation that did benefit unions. If legislation benefits unions, it must disadvantage African-Americans. However, according to Estreicher and Schwab (2000), today, union membership is higher for blacks than for other groups, and union membership brings a wage differential of 17 percent to whites, but 25 percent for nonwhites.

The culmination of this tale comes in Chapter 5, New Deal Labor Laws, where Bernstein describes the National Industrial Recovery Act (NRA), the Fair Labor Standards Act (FLSA), and the Wagner Act (NLRA). Each, he argues, disadvantaged African Americans. On the one hand, the NRA's minimum wage provisions were unevenly applied, covering predominantly white jobs but not most predominantly African American jobs. On the other hand, where the minimum wage provisions did apply, they tended to price African Americans out of the market. The NRA also provided for recognition of unions as bargaining agents. The American Federation of Labor unions tended to exclude African Americans, and union recognition disadvantaged the excluded group. Bernstein also, however, argues that even in the relatively non-discriminatory CIO unions, "the CIO's equal-wage policy encouraged employers to favor whites for employment, particularly for skilled or supervisory employment." Bernstein notes that the short life of the NRA was ended by Supreme Court decisions, but the recognition of unions of bargaining agents was revived by the NLRA, which the Supreme Court upheld in NLRB v. JONES AND LAUGHLIN STEEL CORP. (1937). He quotes former NAACP labor counsel Herbert Hill, who said that the general result of the Wagner Act and the FLSA "was to provide a series of legal protections and benefits to white workers and to make African-American workers more vulnerable to job discrimination."

The FLSA revived the minimum wage provisions of the NRA, with their attendant adverse effects on African American employment, and the Supreme Court abandoned LOCHNER and upheld minimum wage legislation. Here Bernstein mistakenly attributes, to a non-existent page in WEST COAST HOTEL v. PARRISH (1937), quotations from UNITED STATES v. DARBY (1941). Bernstein cites Gunnar Myrdal's observation that the South's main attraction to industry was cheap labor. "The FLSA partially ruined this advantage, resulting in fewer opportunities for African Americans in southern industry."

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Bernstein concludes that, "New Deal labor policies contributed to a persistent increase in African American unemployment. In 1930 the ratio of African American to white unemployment was 92:100; in 1940 it was 118:100; in 1949 it was 160:100; by 1954 it was 2:1 and has remained that way." (p. 103). He implicitly concludes that "statism"-imposition of a regulatory state by a racist society-will inevitably disfavor African Americans, a conclusion long advocated by Derrick Bell. A Lochnerian regime would have held the New Deal laws invalid. Although it might also have held modern civil rights laws directed at private actors unconstitutional, valid civil rights laws would adopt "a classical liberal combination of equal protection of the law/prohibitions on class legislation, liberty of contract and free labor markets, and freedom of association."

In his final chapter, titled "Conclusion" Bernstein sets up a straw person. He asserts, "The dominant view in legal and historical circles is that the economic subjugation of African Americans between Reconstruction and the modern civil rights era primarily resulted from irrational private discrimination and social custom in a free market environment." He cites critiques of Richard Epstein's book, FORBIDDEN GROUND (1992), as taking the stance that discrimination was caused by private rather than public action. The first example he gives of such a critique, however, does no such thing. Norman Amaker's (1993) review of Epstein's book made a more sophisticated point that, "However, in all periods, at every season, the laws that men adopt reflect the nature of their interests, their passions, their power and their morality. What they choose to enact into law says much about who and what they are. Their choices make public their private souls." In fact, the case books and scholarly journals for that time period are filled with attacks on state discrimination in education, employment, housing, voting, criminal justice, and public facilities. Private and public discrimination have provided mutual reinforcement to one another since the beginning of the United States.

Bernstein expresses the hope that his book will "inspire legal scholars and historians to explore further the role that labor market regulation and other facially neutral government regulations played in harming African Americans economically." He also concedes that the Lochnerian principles, which he believes would have benefited African Americans prior to the modern civil rights laws, "might disproportionately harm them today." Nonetheless, he praises Lochnerian jurisprudence as providing "neutral principles," and suggests that we "stop demonizing it." His parting shot is aimed at labor unions: He challenges the "powerful myth" that "labor unions, abetted by government, were responsible for wage increases" and that without them, workers would have "received wages just above starvation levels." In his view, rises in wages correlate best with increases in productivity.

Entirely missing from Bernstein's paean to Lochnerian jurisprudence is any discussion of the proper role of the Supreme Court. Should the argument against class legislation be addressed to the Court or to legislatures? Should the Court normally defer to the democratically answerable branches? Wholly aside from whether legislation designed to "equalize" bargaining power of employers and workers is a good idea, what in the Constitution would warrant a general rule against it? Also missing is any demonstration that the lot of African

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Americans would actually have been better if the Court had adhered to Lochnerian notions. Nonetheless, this readable and provocative book underscores the complexity of the race question in America and its connection with facially non-racial legal and economic principles.

REFERENCES:

Amaker, Norman. 1993. "Quittin" Time? The Antidiscrimination Principle Of Title VII vs. The Free Market," UNIVERSITY OF CHICAGO LAW REVIEW. 60: 757.

Bell, Derrick 2000. RACE, RACISM AND AMERICAN LAW, 4th ed. Gaithersburg, MD: Aspen Law and Business Press.

Forbath, William E. 1991. LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT. Cambridge: Harvard University Press.

Estreicher Samuel and Stewart J. Schwab. 2000. FOUNDATIONS OF LABOR AND EMPLOYMENT LAW. New York: Foundation Press.

Epstein, Richard. 1992. FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT DISCRIMINATION LAWS. Cambridge: Harvard University Press.

CASE REFERENCES:

IN RE DEBS, 158 U. S. 564 (1895).

LOCAL 28 OF THE SHEETMETAL WORKERS INTERNATIONAL ASSOCIATION v. EEOC, 478 U. S. 421 (1986).

LOCHNER v. NEW YORK, 198 U. S. 45 (1905).

NLRB v. JONES AND LAUGHLIN STEEL CORP., 301 U. S. 1 (1937).

STEELE v. LOUISVILLE AND NASHVILLE RAILROAD CO., 323 U. S. 192 (1944).

UNITED STATES v. DARBY, 312 U. S. 100 (1941).

WEST COAST HOTEL v. PARRISH, 300 U. S. 379 (1937).

WILLIAMS v. FEARS, 179 U. S. 270 (1900).

YICK WO v. HOPKINS, 118 U. S. 356 (1886).