Only One Place of Redress: African Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal.

Author:Douglas, Davison M.


Have African Americans fared better under a scheme of freedom of contract or of government regulation of private employment relationships? Have court decisions striking down regulation of employment contracts on liberty of contract grounds aided black interests? Many contemporary observers, although with some notable dissenters, would respond that government regulation of freedom of contract, particularly the antidiscrimination provisions of Title VII of the Civil Rights Act of 1964, has benefited African Americans because it has restrained discriminatory conduct by private employers. (1)

Professor David E. Bernstein (2) challenges the view that abrogation of freedom of contract has consistently benefited African Americans by examining government regulation of the workplace during the period from Reconstruction to the New Deal. Bernstein argues that "for most of the period after Reconstruction and before the modern civil rights era African Americans were better off with free labor markets than with federal regulation" (p. 105). Bernstein further argues that African Americans benefited from court decisions striking down some of these labor regulations. With this latter argument, Bernstein seeks to bolster the much maligned "Lochnerian jurisprudence," (3) pursuant to which many courts during the early twentieth century declared a variety of regulatory statutes unconstitutional on liberty of contract grounds. Noting that some scholars have argued that Lochner-era decisions benefited the powerful at the expense of the powerless (p. 4), Bernstein claims that those decisions striking down government regulation in defense of freedom of contract frequently aided black interests.

Bernstein has provided us with an important narrative that is underappreciated in African-American history. Historians of the declining status of African Americans during the late nineteenth and early twentieth centuries have tended to focus on the racial animus of private actors and government actions such as segregation laws, disfranchisement, and grossly underfunded black schools. Although some historians have previously noted the efforts of southern state legislatures to control black labor through vagrancy laws, convict leasing laws, emigrant agent laws, contract enforcement laws, and enticement laws, (4) and the anti-black sentiment of many labor unions, (5) Bernstein's book is a useful compilation of the ways in which certain governmental actions adversely affected black employment opportunities during the Reconstruction to New Deal period.

The more provocative parts of Bernstein's book, however, are those in which he uses his historical narrative of the Reconstruction to New Deal era to address the larger implications of government regulation of private market relationships on the fives of racial minorities, and judicial decisions holding such regulation unconstitutional on freedom of contract grounds. Here, Bernstein displays a certain ambivalence. On the one hand, he is careful to note that he is not arguing that "over the longer run African Americans would have benefited disproportionately from economic laissez-faire" (p. 113). Indeed, Bernstein suggests, once African Americans gained political influence, particularly after the enfranchisement of many southern blacks following passage of the Voting Rights Act of 1965, they may have benefited "disproportionately from state action" since they are a "discrete, identifiable, and relatively well-organized group, the type of group that public choice theory suggests often gains disproportionately from collective political action" (p. 114).

On the other hand, Bernstein seems to favor the protection of civil rights of racial minorities through freedom of contract rather than government regulation:

[G]iven the post-World War II historical trends favoring equal rights for African Americans ... one can imagine that but for the interruption of the Great Depression and the New Deal, and the concomitant demise of classical liberalism as a vital American ideology, entirely different forms of civil rights protections could have arisen. Civil rights protections could have been of the sort envisioned by Reconstruction-era Radical Republicans, including Frederick Douglass: 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. (p. 109) Although Bernstein concedes that his freedom of contract model of civil rights protection would not necessarily "obligate the state to eradicate discrimination, or to guarantee `equal opportunity'" (p. 110), he nevertheless argues that "unlike the modern [regulatory] regime [for protecting civil rights], the classical liberal vision does not depend on granting the government massive regulatory powers, and hoping, despite a wealth of contrary historical experience from the United States and abroad, that those powers will never be grossly abused" (p. 110).

Bernstein has written an engaging book that expands our understanding of the ways in which anti-black sentiment contributed to certain types of state regulation that affected African-American employment opportunities in the late nineteenth and early twentieth centuries. Part I of this Review considers various forms of government regulation of the workplace during the Reconstruction to New Deal era that Bernstein believes harmed black workers. Bernstein is convincing in arguing that some of this regulation did harm black economic opportunities. But in a few particulars, he both overstates the effect of this labor market regulation on black economic opportunities and understates the effect of other factors such as grossly unequal funding for education, widespread poverty resulting from generations of enslavement, and the pervasiveness--North and South--of anti-black sentiment among both workers and bosses.

Part II of this Review considers Bernstein's larger thesis that Lochnerian jurisprudence protected black interests during the period from Reconstruction to the New Deal and that the demise of Lochner harmed African Americans. A few Lochnerian decisions did benefit blacks, (6) but many others caused harm and perpetuated racial segregation and discrimination. (7) Although Bernstein argues that Lochnerian jurisprudence "lasted far too short a time" (p. 7) to adequately protect black interests, in fact, freedom of contract ideology faded in time to allow government regulations forbidding racial discrimination in employment, first in the 1940s and then in the 1960s, to withstand judicial scrutiny.


    Bernstein describes his book as a consideration of various "facially neutral occupational regulations passed between the 1870s and 1930s [that] harmed African American workers" (p. 5). These regulations included emigrant agent laws, licensing laws, and various statutes that provided a variety of benefits to labor unions. Bernstein argues that each of these regulations operated in a manner that harmed black interests. But the effect of these laws on black workers is less clear than Bernstein suggests.

    1. Emigrant Agent Laws

      One of the issues confronting southern planters in the wake of emancipation was how to retain low-cost labor, particularly in the face of black mobility. Southern states employed a variety of devices during the late nineteenth and early twentieth centuries to control this mobility: vagrancy laws that essentially criminalized unemployment; a convict lease system that forced those convicted of even minor offenses to agree to lengthy and arduous employment contracts; enticement laws that made it a crime, not a tort, to hire someone under contract with another employer; and emigrant agent laws that restricted the activities of labor agents through hefty licensing fees. (8) Bernstein opens his book with a consideration of emigrant agent laws.

      Labor agents performed two roles for workers: they provided information about distant jobs, and they sometimes paid travel costs to facilitate a worker's move to a new job. Labor agents could also provide guarantees of employment that allowed a worker to avoid a vagrancy charge while moving to a new locale. This facilitation of relocation proved crucial to black interests because migration functioned as an important method for southern black workers to secure more advantageous employment opportunities.

      Beginning in the 1870s, several southern states attempted to limit black mobility by enacting laws imposing substantial license fees on labor agents engaged in the recruitment of workers for out-of-state jobs. State supreme courts divided on the question of whether these laws offended the Constitution. (9) Following the United States Supreme Court's 1900 decision in Williams v. Fears (10) upholding Georgia's emigrant agent law against a claim that it violated freedom of contract, several additional southern states enacted similar emigrant agent laws. Moreover, the "Great Migration" of southern blacks northward during World War I provoked additional southern states to enact emigrant agent legislation (p. 25).

      What effect did these emigrant agent laws and the Court's decision in the Williams case holding Georgia's law constitutional have on African-American mobility? In an earlier article from which this chapter of his book is drawn, Bernstein asserts that the Williams case "negatively affected the lives of millions of African-Americans," (11) but he does not repeat this claim in the book. Bernstein argues that economic theory suggests that emigrant agent laws harmed blacks, but he concedes, as he must, that the effects of these laws are "nearly impossible" to quantify (pp. 25-26).


To continue reading