Dave E. Bernstein.
Only One Place of Redress: African Americans, Labor Regulations, and the
Courts from Reconstruction to the New Deal.
Constitutional Conflicts Series. Durham and London: Duke University Press,
2001. xiii + 191 pp. Notes, bibliography, index. $39.95 (paper), ISBN
0-8223-2583-7 .
Reviewed by:
W. Lewis Burke , School of Law, University of South Carolina.
Published by:
H-Law
(March, 2002)
What Place
of Redress?
Dave E. Bernstein's Only One Place of Redress is
touted by Duke University Press as a bold and controversial new book. It
is that. But it is also less than that. Bernstein, an associate professor
of law at George Mason University School of Law, attempts in this book to
promote free markets economics and to defend the Lochner era of
jurisprudence. In 1905, in Lochner v.
New York,
the United States Supreme Court held that a state regulation prohibiting
bakers from having to work more than 60 hours a week was a violation of
the right of contract. The Lochnerian era dated from 1905 to 1937.
Bernstein's thesis is that African Americans would have benefited more
from such an approach by the Supreme Court after 1937 instead of the one
they followed, which favored the regulatory state. One who applauds free
market economics will find this an eloquent and well researched book,
because Bernstein is an eloquent writer and an accomplished legal
historian. But if one does not believe that free market economics works
fairly and equitably, as this reviewer does not, there will be much in
this book with which to disagree.
One Place of Redress
is a brief book covering more than 100 years of labor history, using case
studies to make the author's jurisprudential point. The first chapter is a
fascinating exploration of emigrant labor agents in the
post-Reconstruction South. Although Bernstein briefly touches on the Black
codes during Presidential Reconstruction, his chief focus is on the
legislative attempts in the post-Reconstruction South to prevent labor
agents from enticing African American workers to move west to Mississippi
and Arkansas out of the Carolinas and Georgia. The most interesting
character in the book is the chief subject of this chapter. He is Peg Leg
Williams, a labor agent who had lost his leg while serving under
Confederate General Nathan Bedford Forrest in the Civil War. Williams
challenged the legislative efforts at regulating his activities by
refusing to pay a $500 tax in Georgia. He was convicted and his conviction
was upheld by the Georgia Supreme Court, and ultimately by the U.S.
Supreme Court in 1900. Emigrant agent laws were soon passed in five
additional southern states. Bernstein admits that the emigrant labor agent
laws did not prevent hundreds of thousands of African Americans from
migrating. He does conclude that such laws were a major obstacle to the
labor agents, and that while such laws were certainly not "the worst
example of southern oppression" such laws "were an important strand" in
the oppression of southern African Americans by limiting their freedom to
contract (p. 27). Given that many African Americans moved to Mississippi
and Arkansas during this period and that Africa Americans have remained
the poorest people in Mississippi and Arkansas since the Civil War, it is
difficult to perceive how their freedom of contract benefited them
economically.
In his second chapter Bernstein examines the adverse impact
of licensing laws on African Americans in plumbing, barbering, and
medicine. These impacts are well documented, but the cause of the impacts
varies and is not necessarily the direct result of the licensing laws. For
example, Bernstein cites the dramatic decline in the number of licensed
African American barbers after 1900, continuing until the 1970s. He
reports that a study in the 1970s found only six licensed black barbers in
eight southern states. This study seems suspect to this reviewer.[1] And,
Bernstein concedes that there were many more African American barbers
operating in these states who simply were not licensed. Such barbers were
permitted to engage in their trade so long as they only served the African
American community. Was this a result of licensing practices or simply
bigotry? One 1980 study cited by Bernstein found that African Americans
still were being denied cosmetology licenses at a higher percentage than
whites, despite their success on practical examinations, because they were
failing the written tests that "only tangentially related to their jobs."
This is a refrain that is being echoed in relation to all standardized
tests today. The effect of licensing laws on plumbers were found by
Bernstein to be similar. Bernstein's revelations here are startling. How
uncomfortable it is to be reminded of how recent the exclusion of African
Americans from participation in the American economy was. Bernstein makes
this point vividly by pointing out that there was only one licensed
plumber in Charlotte, N.C. in 1968 and there was still only one African
American licensed plumber in Montgomery, Alabama as late as 1972. However,
as again the question has to be asked if the licensing laws were the cause
of the problem or if it was caused by racism.
In this same chapter, Bernstein examines the licensing of
physicians. Bernstein believes that the licensing of medical doctors was
imposed with good motives but unintentionally hurt African Americans. He
demonstrates his point dramatically by pointing out that, at the turn of
the twentieth century, the American Medical Association's rating system
for medical schools resulted in more stringent licensing procedures in
various states. To Bernstein, these stringent licensing requirements
forced the closing of five of the seven predominantly African American
medical school in the U.S. Bernstein suggests that the American Medical
Association could have ameliorated the effects of stringent licensing
requirements by pressuring white medical schools to admit African American
students or to establish separate programs for blacks. Of course, the
all-white organization did neither, a course of action that Bernstein
attributes to racism and the fear by southern doctors of black
competition.
One area that Bernstein does not explore but bears
comparison is the legal profession. For example, did bar examinations or
American Bar Association accreditation cause the sharp decline of African
Americans being admitted to the bar? My own research in one southern state
suggests that the decline in the number of African American lawyers was
caused by the lack of federal enforcement of civil rights and the
acquiescence to Jim Crow by white America. Late nineteenth-century South
Carolina was unusual in that its public university produced black lawyers
and two black colleges with law schools. Between 1868 and 1900, 77 African
Americans were admitted to the state's bar. The written bar exam was
introduced in the state in 1887 and fully one-third of these black lawyers
were admitted in this 13-year period after the introduction of the written
exam.[2] However, after 1900 the drop in the admissions of African
Americans was so dramatic to be mind-boggling. No more than six African
Americans were admitted between 1900 and 1950. ABA accreditation did not
reach South Carolina until 1925,[3] and the requirement of ABA
accreditation for admission to the bar did not come until 1958.[4] The
works of John Oldfield on South Carolina and that of J. Clay Smith on the
entire country demonstrate that the decline of the African American legal
profession is attributable to racism and the resulting failure of black
lawyers to be able to attract clients.[5] The only work that might support
Bernstein's hypothesis is that of Judith Kilpatrick on African American
lawyers in Arkansas. Kilpatrick found that when comparing periods between
1865 and 1950 that there was a drop of over 50 percent in black bar
admissions in Arkansas after the imposition of the written bar examination
in 1917. She also attributes the decline to the out migration of African
Americans from the state. Kilpatrick noted throughout her study the
difficulty these black lawyers faced in attracting clients--which of
course would have diminished the numbers of those who wished to practice
law.[6]
In chapters three and four, Bernstein makes a strong case
that racism played a major role in the passage of railroad labor
regulation legislation and the prevailing wage law in the 1920s and early
1930s. For those who are ill-educated or naive about the history of labor
unions, these chapters should serve as an eye-opener. As these unions grew
more powerful, they persuaded Congress and others to enact legislation or
regulation that favored them. And if such unions benefited by the
monopolies granted them, disenfranchised African Americans, who were no
one's constituents, became losers. The most odious example cited by
Bernstein is the Davis-Bacon act. This act required contractors on
government jobs to pay the local prevailing wage; consequently southern
contractors using low paid black workers were prevented from working on
government jobs in the major metropolitan areas of the North. As Bernstein
makes clear, the chief lobbying for this legislation came from the
American Federation of Labor and the local construction trades unions in
the major northern cities. Bernstein makes a compelling case that African
Americans have been harmed by Davis-Bacon and that its discriminatory
effects have continued.
In his final chapter Bernstein attacks the New Deal. His
first point is that New Deal caused serious harm to African Americans. But
he begins this chapter by disingenuously labeling the Davis-Bacon Act as
New Deal-era legislation, even though it was passed in 1931 and its named
sponsors were both northern Republicans. Neither Davis nor Bacon was a New
Dealer, and Franklin D. Roosevelt was not elected until 1932 and did not
take office until March 4, 1933. It is true that one can find racist
unions supporting labor regulation during the New Deal and that the
National Mediation Board had a dismal record on civil rights, and
Bernstein correctly points out that the good intentions of the New Dealers
sometimes blinded them to the racism of their allies in the labor movement
and Congress. He asserts that the New Deal is to blame for the ever
increasing unemployment of African Americans from the 1930s to the 1980s.
In fact, he cites statistics that supposedly demonstrate that black
unemployment was less than that of whites in 1930 and has increased ever
since. These statistics do raise troubling questions. But like other
conclusions that Bernstein makes, there is the issue of interpretation. He
asserts that one of the chief causes of this unemployment is the minimum
wage. In furtherance of his point, he cites that employment of African
American teenagers dropped from 60 percent in 1956 to 30 percent in 1977
"in part because of minimum wage laws and coverage." (p. 104). He
supposedly proves his point by pointing out that white teenage
unemployment did not drop in this period. One has to query why the market
would behave in such a racist fashion. The minimum wage laws do not favor
one race over another and unions do not have members who make minimum
wage. So the only culpable actor in his example is the employer. If
employers were not racist, why would black teenagers suffer
disproportionate unemployment?
The second point of his chapter on the New Deal leads to a
serious question about Bernstein's analysis. He condemns unions for their
racism. While many if not most unions could be considered racist during
the period, this racism would have had little impact on African Americans.
There were few unions in the South where the vast majority of African
Americans lived during this period. Between 1930 and 1960 at most 30
percent of African Americans lived outside the South and even today the
majority of African Americans still live in the South.[7] Another weakness
of Bernstein's thesis is his blatant disregard of the racism of
corporations and management. At best, he makes a few passing references to
this problem. An excellent recent study of one of the few unionized
industries in the South clearly established the longstanding racism of the
paper corporations and their management.[8] Bernstein gives some credit to
the CIO for being less racist than the AFL, but he does little to explore
the fact that some Southern labor unionists were not racists. There were
integrated southern unions and union leaders in the South who advocated
civil rights. In the 1930s H. L. Mitchell and the Southern Tenant Farmers'
Union is one of the best known stories of the courageous efforts to
organize an integrated union. The STFU lasted from 1932 TO 1940.[9] A
less-known story is that of Claude Ramsey, the president of the AFL-CIO in
Mississippi during the late 1950s and in the 1960s. Ramsey supported civil
rights in the face of threats and intimidation and was reelected president
of the state organization in 1964.[10] Bernstein ignores such examples of
non-racist union activities in the South as these.
Although Bernstein gives strong anecdotal evidence that
labor regulation caused harm to African Americans, he does not demonstrate
that the invisible hand of the free market would have treated them any
differently. One cannot ignore that the African American community had the
"Invisible Empire" to fear all across America in the first half of the
twentieth century. From the beginning of Jim Crow in the late 1800s until
the modern civil rights movement gained strength in the 1960s, African
Americans suffered from racism in all institutions and in all segments of
society. It is simply impossible to imagine that this situation would have
changed, had not free market economics been displaced by the hand of
government regulation. In fact, it was the strong hand of the federal
government that ultimately led to the end of Jim Crow and de jure
segregation in all public places, institutions, trades, and professions.
Bernstein strongly disagrees with those scholars who have argued that the
New Deal led to the judicial mindset that resulted in Brown v. Board of
Education and the Civil Rights statutes that followed. Despite his
vigorous advocay, he has not persuaded this reviewer to abandon the
position that African Americans, other minority groups and women have all
benefited from the "Caring Society" that was the New Deal.[11]
Bernstein should be credited with trying to open eyes to
the racism of the labor movement in America, and in all fairness, he has
written a provocative book that should be read by all those interested in
issues of race, labor, and economics. He should also be credited with
writing a conclusion that honestly assesses the issue of the economic
subjugation of African Americans as a complex one. He acknowledges that
culture, violence, and social mores must be considered in the equation
ALONG with economic theory and that Lochner should not be revived.
Certainly, HE has made an important contribution to the literature and
this debate. However, Bernstein's book suffers from the central flaw of
its thesis--the faulty assumption that free market economics works in an
irrational world. The America of which Bernstein writes has been permeated
with racism since its founding. African Americans have suffered
discrimination in all spheres of life in America. To posit that
Lochnerian jurisprudence would have had any appreciable effect on that
racism is a claim that defeats itself.
Notes
[1]. This reviewer personally knew six African American
barbers just in one county in South Carolina in 1970. Although they had
mostly a black customer base, they did have white customers, and my memory
is that they had licenses on the walls of their shops.
[2]. Act No. 272, Acts & Joint Resolutions of the State
of South Carolina (Columbia, S.C.: Charles A. Calvo, Jr., State
Printer: 1887); and see also the Roll of Attorneys of the Supreme
Court of South Carolina.
[3]. The University of South Carolina was accredited by the
ABA on May 1, 1925. See certificate of accreditation at USC School of Law,
Columbia, S.C.
[4]. See Rule 6, Rules for the Examination and Admission of
Persons to Practice Law in South Carolina, Code of Laws of South
Carolina (1952, as amended March 1, 1958). Even this rule allowed
admission to those who graduated from the University of South Carolina and
the Law School of South Carolina State College.
[5]. See John Oldfield, "The African American Bar in South
Carolina, 1877-1915," in J. L. Underwood and W. L. Burke, eds., At
Freedom's Door (Columbia: University of South Carolina Press, 2000),
117; also see Oldfield Burke Appendix in At Freedom's Door at
127-129; J. Clay Smith, Emancipation; The Making of the Black Lawyer
1844-1944 (Philadelphia: University of Pennsylvania Press, 1993).
[6]. Judith Kilpatrick, "Extra Ordinary Men:
African-American Lawyers and Civil Rights in Arkansas before 1950,"
Arkansas Law Review 53 (2000): 299, 309, 347, 381-382.
[7]. See Datapedia of the
United
States 1790-2000
(Lanham, Maryland: Bernan Press, 1994), 18-27; and Statistical Abstract
of the United
States: 2001
(Washington, D.C.: U.S. Department of Commerce 2001), 24.
[8]. See Timothy Minchin, The Color of Work (Chapel
Hill and London: University of North Carolina Press, 2001).
[9]. F. Ray Marshall, Labor in the South (Cambridge:
Harvard University Press, 1967), 158-164.
[10]. Meryl E. Reed, Leslie S. Hough, and Gary M. Fink,
eds., Southern Workers and their Unions, 1880-1975 (Westport and
London: Greenwood Press, 1981), 110-142.
[11]. See Irving Bernstein, A Caring Society: The New
Deal, the Worker and the Great Depression (Boston, Mass: Houghton
Mifflin Co., 1985).
Library of Congress
Call Number: KF3464.B47 2001
Subjects:
* Discrimination in employment -- Law and
legislation -- United States -- History
* African Americans -- Employment -- Law and legislation -- History
Citation: W. Lewis Burke . "Review of Dave E. Bernstein,
Only One Place of Redress: African Americans, Labor Regulations, and the
Courts from Reconstruction to the New Deal," H-Law, H-Net Reviews, March,
2002. URL:
http://www.h-net.org/reviews/showrev.cgi?path=261691018032813.
“Only One Place of Redress provides a stimulating
overview of the relationship among organized labor, African Americans, and
the U.S. legal system for the period 1877-1945. It usefully
defamiliarizes the past and uses a briskly presented law and economics
perspective to force a rereading of the traditional script of labor
history. While Bernstein’s analysis may in the end be more provocative
than convincing, in placing race at the center of U.S. labor history it
joins a rich stream of recent scholarship.”
Robert H.
Zieger, review of Only One Place of Redress: African Americans, Labor
Regulations, and the Courts from Reconstruction to the New Deal, by
Dave E. Bernstein, Reviews in American History, 29 (December
2001): 567-572