Racist Regulations: How the Government Held Down Minoritiesby Robert Whaples From Humane Studies Review Vol. 14, No. 2
"I think one man is just as good as another so long as he’s honest and decent and not a nigger or a Chinaman." That’s what Harry Truman wrote to Bess on June 22, 1911, in the same letter in which he asked if she would wear an engagement ring, if he bought her one. (Robert Ferrell, editor, Dear Bess: The Letters from Harry to Bess Truman, 1910-1959, New York: W.W. Norton, 1983, p. 39.) Such sentiments shock us today, but they were routine at the time. To his credit, Truman grew out of such prejudices as he matured. The same can be said for the nation as a whole, but the fact is that until about half a century ago, most white Americans simply did not like black people very much and did not want to cut them any breaks. Early public opinion polls from the 1930s and '40s show that most whites did not want to live near blacks and they did not think blacks should be given the same job opportunities as whites. There was a problem for people with such notions of fairness, however. The problem was that some greedy whites would not go along with the rest of the crowd. They were willing to break ranks with members of their own group and do things that were considered despicable–like helping blacks find work and even hiring them to do perfectly respectable jobs that other whites could have done. In a nutshell, the problem that these racists faced is that a competitive market tends toward colorblindness. To crack the nut, these racists did what people with political rights usually try to do: they organized and got the government to do their dirty work. They used the power of government to pass laws and regulations through which they could enforce their desires for discrimination. David Bernstein’s book tells a neglected chapter of this important story. The provocative argument of Only One Place of Redress is that some of the most important and revered labor regulations of the late nineteenth century and the first half of the twentieth century were designed to help white workers at the expense of African Americans, that these laws had a significantly harmful impact on African Americans, and that the judiciary played an important, but inconsistent, role in blocking this assault on black workers. Who protected the despised minority? Bernstein answers that ideological judges committed to freedom and limited government did. Bernstein begins with the much-maligned Supreme Court ruling in Lochner v. New York (1905). In this case the court invalidated a provision of a law regulating bakeries that prohibited owners from employing bakers for more than sixty hours per week. Accepting the defendant’s argument that mortality rates for bakers were only slightly above average and lower than in many unregulated occupations, the court ruled that the hours provision was not a constitutional measure protecting bakers’ health, but was class legislation "passed for other motives"–namely to benefit unionized German bakers at the expense of unorganized recent immigrants. From 1905 to 1937, during the so-called Lochner era, the Supreme Court was generally sympathetic to those challenging government regulations, especially occupational regulations, as violations of the implicit constitutional right to liberty of contract. Unfortunately, Lochnerism was never consistently practiced. It was practiced enough, however, that the courts became the only place of redress for those in the minority whose livelihoods could be wrecked by such deceptive and supposedly humanitarian regulations. To prove this thesis, Bernstein examines five sets of laws passed between the Civil War and World War II. He begins with Reconstruction-era emigrant agent laws. During this period many recently emancipated blacks living in the poorest regions of the South desired to move to places where conditions were better. Employers in more prosperous regions, such as the Delta area of Mississippi, faced high wages and wanted additional workers. Unfortunately, poor black workers had only scanty knowledge of these job opportunities and often could not afford to pay the train fare to move hundreds of miles. Into this market came entrepreneurs like Robert "Peg-Leg" Williams, the "king of labor agents." He lent money to migrants, arranged their transportation, and provided employers with workers, helping over ten thousand people move each year. Local employers saw such agents as a dangerous threat, since the loss of so many workers would drive up local wages. At the employers' behest state governments adopted laws designed to drive labor agents out of business, including requirements that agents pay fees as high as one thousand dollars per county before they could do business. At first many southern state courts rejected such laws. Alabama’s court found a $250 license fee prohibitory, designed to "seriously clog and impair the laborer’s right of free emigration," and "void as an indirect tax upon the citizen’s right of free egress from the State" (p. 14). Unfortunately, the Supreme Court eventually upheld a similar Georgia law in Williams v. Fears (1900) and soon emigration-prone southern states reenacted their statutes. This labor market regulation was clearly designed to help white residents at the expense of blacks. State court rulings, however, successfully blocked these attempts for a couple of decades before the Supreme Court’s ruling. Next Bernstein examines occupational licensing laws. Many of these seemingly race-neutral laws were enacted with a progressive patina of good intentions, purportedly protecting the public from blundering, unskilled workers. Blacks had been making inroads into occupations such as plumbing and barbering. To counter this competition, unions convinced state legislatures to require licenses, which could be obtained if the individual passed an exam or graduated from a certified school. The only problem for black barbers in Virginia, to take one example, was that there were no licensed barber schools that would admit African Americans. Again, some courts struck down such laws citing the right of every man to work at his trade and earn a living, but most did not. Bernstein documents substantial declines in black employment in these trades after the passage of such laws. Perhaps the most disturbing of Bernstein’s chapters concerns labor regulation in the railroad industry. African Americans made impressive gains in the railroad industry before World War I, with blacks holding about one-third of southern railroad brakemen and fireman jobs and many employers eager to hire more. However, most railway unions were unapologetically racist and barred blacks from membership. The Grandmaster of the Brotherhood of Locomotive Firemen looked forward to the day "when every locomotive in the country would be fired by a white man," and promised "a campaign in advocacy of white supremacy in the railway service" (p. 48). The campaign included a 1911 strike protesting the employment of blacks, which led to the murder of ten African-American firemen. Power came to the railway unions with the passage of the Railway Labor Act of 1926. The National Mediation Board determined which union would act as the sole bargaining agent of workers, and it almost always selected discriminatory unions that barred black membership. Given this power, the unions won contracts that increasingly restricted black employment. By 1940, the number of African-American firemen and brakemen had declined by almost two-thirds from its 1920 level. In the face of this onslaught, black trainmen sued. Finally, in Steele v. Louisville & Nashville Railroad (1944), the Supreme Court ruled that railroad unions had a duty to fairly represent minority members. Unfortunately, the damage had been done, and the ruling was not enforced very vigorously. Construction unions were much like railway unions. They desired to limit the supply of labor so that they could boost wages. Members also wished to protect their social status by keeping blacks out of the trade. When organized labor gained strength during the Great Depression, construction unions called on the government to bolster their position. The Davis-Bacon Act (1931) was the crucial piece of legislation that did so. This bill can be traced to an incident in which a crew of black workers from Alabama was imported to build a Veteran’s Bureau hospital in Congressman Robert Bacon’s Long Island district. Bacon’s objection to the arrival of these workers was the genesis of a bill that required, and continues to require, the government to pay workers on all federal construction projects the "prevailing" local wage–where "prevailing" means union. The act greatly strengthened construction unions, allowing them to compete against lower-paid black workers and to reinforce provisions barring black workers from most building trades unions. Ironically, considering that Davis-Bacon was ostensibly passed to protect local workers, unions had the power to insist that employers bring in union labor from distant places rather than hire local nonunion African Americans. Many observers believe that the Davis-Bacon Act helps substantially reduce black employment in the construction industry to this day. Finally, Bernstein considers labor laws passed during the New Deal. The worst of the New Deal agencies may have been the ill-named National Recovery Administration (NRA), which reversed the recovery from the bottom of the Great Depression by allowing firms to raise prices and restrict output, and which gave new powers to unions that excluded blacks. The African-American press referred to the NRA as "Negroes Rarely Allowed" and "Negroes Robbed Again." The NRA was followed by the Wagner Act, which granted discriminatory labor unions newfound power. Near the end of the New Deal (1938) came the Fair Labor Standards Act with the requirement that employers pay a minimum wage. The minimum wage was higher than the wage of many black workers in the South, and Bernstein cites evidence that it caused substantial job losses among them, especially in the tobacco industry. Bernstein suggests that these labor laws bear much of the responsibility for pushing the black unemployment rate, which was below that of whites in 1930, to a level that has been consistently twice that of whites. Bernstein is a law professor, not an economist, so his evidence that blacks were harmed by these labor regulations will strike many as merely suggestive. Was the negative impact of these laws on African Americans small or large? Bernstein has built a strong case that the damage from these labor laws was not small. It is time for economic historians to test his conclusions more systematically. It is a sad commentary that Bernstein had to write this book. All of the facts that he recounts should be well known. In fact, if you type the phrase "Davis-Bacon" into the Google search engine, you’ll soon find several informative sites that explain its racist underpinnings. Unfortunately, many of those who teach history today have no desire to examine the history of the labor movement too closely; the same could be said of those who write their textbooks. Bernstein, however, appreciates the injustices that can arise when the state becomes too powerful, and proves willing to set the record straight. Complete archives at http://www.sitbot.net/ Please let us stay on topic and be civil. OM YAHOO! GROUPS LINKS
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