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Reviews / Comptes Rendus

David Bernstein, Only One Place of Redress: African Americans, Labor regulations, and the Courts From Reconstruction to the New Deal (Durham: Duke University Press, 2001)

ONLY ONE PLACE of Redress represents a largely futile effort to breathe life into the pre-New Deal laissez-faire jurisprudence that at one time threw the protection of the Fourteenth Amendment around liberty of contract. Thrown into disrepute by liberal legal scholars, and embodied in the infamous Lochner v. New York (1905) US Supreme Court decision invalidating a shorter hours law for bakers, absolutist free market constitutional interpretation at one time thwarted much government regulation of the economic sphere. Combining legal history of workplace regulation with civil rights history, Bernstein argues that "facially neutral occupational regulations passed between the 1870s and the 1930s harmed African American workers."(5) In an effort to rehabilitate what he calls the "Lochnerian jurisprudence"(2) that posed an alternative to the expansion of the regulatory state between 1905 and 1937, Bernstein suggests that when applied by some courts, the free market principles embedded in Lochnerism "protected African Americans" (7) against discriminatory treatment.	1
In five succinct chapters derived from his law review articles, Bernstein examines several legal restrictions on the US labour market, not all of them comparable in origins or impact. These include southern emigrant agent laws restricting intrastate labour recruitment, occupational licensing, a 1931 prevailing-wage law in public works construction projects (the Davis-Bacon Act), the Railway Labor Act (RLA) of 1926 and 1934, and subsequent New Deal labour legislation, both of which conferred sole collective bargaining rights on unions and minimum wage laws.	2
None of this quite adds up to a defense of the philosophy embodied in Lochner. Bernstein treats the emigrant agent laws, designed to inhibit labour recruitment and out-migration from the South by rural Black workers, as "an excellent example of how Lochnerian jurisprudence, when applied, aided African Americans," (27) even though these laws usually survived judicial scrutiny. This is confusing, since Bernstein does nothing to demonstrate his counterfactual view that if the Supreme Court had, in fact, actually rejected the "government regulation" (27) embodied in these laws, that Blacks would have benefitted from the ensuing free market in labour. Racism and coerced labour would hardly have vanished from the Southern labour market in the absence of emigrant agent laws. These laws derived from a coercive system of labour linked to White supremacy, not Progressive-era efforts to reform the American workplace, like the hours and wages laws Bernstein also decries.	3
Another example of discriminatory labour market regulation is occupational licensing laws that "allowed racist white unions and professional organizations" (31) to exclude Blacks from such fields as plumbing, barbering, and medicine. Unlike emigrant agent laws, licensing laws were not designed to restrict Black labour, Bernstein claims, but eventually became part of the arsenal of weapons used by skilled craftsmen to exclude Blacks from certain trades. Presumably, however, Bernstein would oppose current legal remedies to this history of discrimination, such as set-aside minority contracts or affirmative action in medical school admissions, as an equally unjust regulation of the marketplace.	4
As for discrimination against Black railroad workers, perhaps his most compelling example, Bernstein is quite correct to insist that the 1934 Amendment to the RLA, granting exclusive bargaining rights to racially exclusive railroad craft unions, had "disastrous results for African Americans" (64) in the railroad industry. Yet again, by shoehorning his analysis of this policy into "the abandonment of Lochnerian jurisprudence," (65) Bernstein conveniently disregards the fact that the legal challenge to the RLA mounted by noted civil rights attorney Charles Hamilton Houston rested on extending government power to protect Blacks, not a restoration of liberty of contract jurisprudence. Houston found some success in the 1940s because the post-New deal Supreme Court to which he appealed proved sympathetic to his civil rights argument, as Eric Arnesen has shown in his fine Brotherhoods of Color.	5
Most puzzling of all is Bernstein's argument that Lochnerian jurisprudence used liberty of contract interpretations to protect the rights of Black workers prior to the New Deal. After all, even between 1905 and 1937, as he shows, federal courts usually upheld economic regulations that had a negative impact on Blacks, the precedent of Lochner notwithstanding. Clearly, the right of contract proved a weak barrier to White supremacy — making the courts a peculiar place of redress for Blacks. It was only after the New Deal revolution in Constitutional law vastly enhanced the reach of federal regulatory power, through an expansive reading of the Constitution's commerce clause (allowing Congress to regulate interstate commerce), that Blacks found much protection from the courts. If anything, the sanctity of contract worked against Black workers, as the long struggle to enforce the peonage statutes and the Thirteenth Amendment's bar on involuntary servitude might have suggested, had Bernstein bothered to consider it. Not until 1942, in Taylor v. Georgia, did the Supreme Court once and for all declare criminal sanctions for employer violations of labour contracts illegitimate.	6
In his haste to declare all economic regulation of the employment relation the fruit of special interest legislation, Bernstein even declares a state law restricting women's laundry work to 10 hours, upheld in Muller v. Oregon, "legislation that was intended to protect male workers from female competitors." (120) Of course, few if any men were employed in laundry work at the time, and women themselves sought the law. The book is shot through with just this sort of distorted special pleading. Bernstein complains that New Deal labour legislation harmed Black workers (hardly a novel insight), but relegates to a footnote the fact that the Southern congressmen most adamantly opposed to economic regulation were the ones who insisted that agricultural and domestic workers remain uncovered by these laws. And in condemning court rulings upholding the right to organize and the minimum wage, Bernstein rejects the notion that post-Lochnerian jurisprudence set the stage for the legal revolution in civil rights, by enhancing federal power at the expense of the states and the market. Instead, he attributes post-World War II civil rights rulings to "the dramatic turn from racism among the legal and intellectual elite," (108) ignoring their constitutional basis in the narrowing of states' rights and the expansion of the commerce clause.	7
Fundamentally, Only One Place of Redress demonstrates one thing while arguing quite another. To show that regulatory labor law had a negative impact on Blacks, and even had racist underpinnings, hardly validates the counterproposition that Black workers would have benefitted from a laissez-faire regime. Bernstein concludes that "Lochnerian jurisprudence, had it survived the New Deal, could have been a potent weapon against segregation laws." (108) This is pure speculation. The shocking thing about Bernstein's book is its pervasive, and offensive, disingenuousness. In the guise of writing a piece of legal scholarship sympathetic to the just claims of Black workers to equal footing in the labour market, he has produced little more than a legal brief, sponsored by the right-wing Olin Foundation (as he acknowledges), for a radical dismantling of the regulatory state. Clarence Thomas might approve of this approach to legal history, but the architects of the Civil Rights revolution in Constitutional law in whose name Bernstein presumes to speak — Charles Hamilton Houston and Thurgood Marshall among them — advocates as they were of the expansion of an interventionist federal state to protect Black rights, would roll over in their graves.	8
Alex Lichtenstein Rice University, Houston

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