| Book Review | Law and History Review, 21.2

Book Review

David E. Bernstein, Only One Place of Redress: African Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal, Durham: Duke University Press, 2001. Pp. 192. $39.95 (ISBN 0-8223-2583-7).

David E. Bernstein's Only One Place of Redress is a terribly flawed work that claims to assess the impact of "facially neutral economic resolutions" on African Americans from the 1870s to the New Deal era. Bernstein joins a long list of scholars who have noted that the house of labor has not been immune to racism. The American Labor movement, according to the author, used its political might to have the state create occupational resolutions that benefited labor at the expense of African Americans. African Americans were not only victims of racist labor practices but of an intrusive government.

Bernstein celebrates the 1905 Supreme Court's Lochner decision invalidating a law that prohibited bakers from forcing their employees to work more than sixty hours a week. Lochner curtailed labor unions and government from establishing occupational regulations allowing instead a free market approach. According to the author, the Lochner decision gave courts ammunition to stop labor unions from locking out African Americans from professions and employment. However, due to the liberal establishment's interpretation of Lochner as promoting a social Darwinian approach, favoring the rich over the poor and not based on the text of the Constitution, the 1905 decision was discarded. Bernstein does note that even during its heyday, from 1923 to 1934, Lochner was never consistently practiced. Instead of "Lochnerian jurisprudence," those in favor of regulation were able to win the day.

Bernstein focuses on several areas in an attempt to demonstrate the adverse affect that occupational regulation had on African Americans. He notes that emigrant agent laws which restricted labor agents from recruiting southern blacks to northern industries; plumbers', barbers', and physicians' licensing laws limiting these professions to whites; the 1926 Railroad Labor Act and the 1934 amendment to the act, which gave racist white unions the power to exclude blacks from their ranks, all helped to maintain a racist and hierarchal labor force. Moreover, Bernstein argues that the 1931 Davis Bacon Act, which made it mandatory that construction workers on public projects be paid above the market rate, all but eliminated blacks from government contract construction work. He also points out the racism of such New Deal programs as the National Industrial Recovery Act, because its minimum wage provision did not cover areas in which African Americans were heavily employed, such as agricultural and domestic work. It also maintained a "grandfather" wage clause creating wage differentials that harshly impacted black workers. The author even suggests that if the NRA had not been ruled unconstitutional, African Americans would have been forced into a "permanent second-class and economic status." The NRA and other New Deal legislation such as the Wagner, the Fair Labor Standard, and the Agricultural Adjustment Acts provided benefits to white workers at the same time it reinforced racial barriers.

Bernstein is correct to note that unions acted to protect the privileges of their white membership at the expense of people of color. Besides using legal remedies to protect white workers, the author correctly points out that the employment of race strikes and even the use of violence on the part of white workers were tools used to assure the denial of certain occupations to African Americans. However, he erroneously equates labor's struggle for collective bargaining with a racially exclusionary agenda as though they were one in the same.

Just as important, Bernstein completely ignores what labor historians and others have noted for a long time: management used race to defeat unions. The most recent works to note this phenomenon are Eric Arnesen's Brotherhoods of Color: Black Railroad Workers and the Struggle for Equality and Brian Kelly's Race, Class, and Power in the Alabama Coalfields, 1908–21. Bernstein ignores this rich literature and instead paints industrialists as much more enlightened than their workers on the issue of race. For example, he claims that employers, "like the rest of white society, typically believed in African American inferiority, but experience frequently overcame ideology. Employers continued to hire African Americans for occupations where African American workers had proved themselves competent before the rise of labor unions." Thus, the author would have readers believe that the only force fighting to exclude blacks from employment were white workers. He simply takes management off the hook when it came to racial discrimination.

And if all this were not bad enough, Bernstein moves from the ridiculous to the sublime by attempting to convince the reader that blacks took full advantage of strikes, injunctions, and yellow dog contracts. He portrays black workers as conscious and willing strikebreakers who desired to take full advantage of labor and management strife. Strikes, yellow dog contracts, and injunctions were means, according to the author, for blacks to climb the occupational and professional ladder. Bernstein's odd conception of black agency flies in the face of historical reality. There is no mention of how management manipulated black workers desperately in need of employment by hiring them to break strikes. In addition, his accusation that on occasion "socialist W. E. B. Du Bois ... advocated African American cooperation with industry against unions" is at best misleading. He forgets to mention that Du Bois constantly pleaded with organized labor to end its racist exclusionary practices. He and the NAACP worked to end labor's racial barriers to union membership. This is a far cry from Bernstein's argument that Du Bois was in the same camp as anti-union black leaders such as Booker T. Washington and Marcus Garvey.

Bernstein's argument that a "classical liberal" state promoting free market principles is the best remedy to end racial discrimination has not been verified by history. Does one really believe that before New Deal jurisprudence and during what historian Rayford Logan called the nadir in race relations that courts were places of redress for African Americans? If African Americans benefited from Lochnerian jurisprudence, then why did they flock to the Democratic Party and embrace the New Deal State? Although Only One Place of Redress is provocative, it is clearly wanting as a historical account on the relationship between African Americans and the labor movement.

Clarence Taylor

Florida International University

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