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

By Behnken, Brian D. | South Carolina Historical Magazine, October 2004 | Go to article overview
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Only One Place of Redress: African Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal


Behnken, Brian D., South Carolina Historical Magazine


Only One Place of Redress: African Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal. By David E. Bernstein. (Durham, N.C.: Duke University Press, 2001. Pp. xi, 191; $39.95, cloth.)

In Only One Place of Redress, David Bernstein contends that between 1890 and 1937 American courts aided black workers in labor disputes. The court did this by upholding the freedom of contract doctrine enshrined in Lochner v. New York, the 1905 case that invalidated legislation limiting the hours a baker could work. "Lochnerism" or "Lochnerian jurisprudence," as Bernstein calls it, benefited blacks by voiding discriminatory labor laws, and he illuminates how these labor regulations harmed African Americans. "The Supreme Court," he writes, "was relatively sympathetic to plaintiffs who challenged government regulations, especially occupational regulations, as violations of the implicit constitutional right to 'liberty of contract'" (p. 2). The author traces work discrimination by examining emigrant agent laws, licensing regulations, and New Deal legislation, among many others, to show how Lochnerism could have, or did, help black Americans.

Bernstein begins with emigrant agent laws, which taxed labor recruiters in order to prevent them from removing black workers from the South. "The planters," Bernstein writes, "sought to discourage or effectively ban emigrant agents to inhibit a free market in labor" (p. 12). Labor agents readily challenged these laws. For example, in the late nineteenth century agents contested Alabama and North Carolina statutes that severely taxed them for taking black laborers out of state. These states' supreme courts struck down the laws on Lochnerian grounds. However, the U.S. Supreme Court rejected these precedents in 1900 and decreed that agent laws did not violate freedom of contract. This led to further harassment of labor agents and black migrants. Bernstein contends that white harassment of African American migrants hampered black mobility. In the 1910s and 1920s, he notes, labor laws became even more restrictive.

Bernstein next turns his attention to the licensing of black plumbers, doctors, and barbers. White plumbers, for instance, used their unions to establish licensing boards for plumbers as a kind of spoils system, with positions on the board going to the best organized unions. These boards denied licenses to black plumbers, which limited the work blacks could perform and forced many out of the industry. "The efforts of the plumbers' unions to keep African Americans from getting licenses were extraordinarily successful," Bernstein concludes (p. 36). As for black doctors, Bernstein shows not only how licensing boards denied black doctors a license, but also how discriminatory boards worked to shut down all but two black medical schools.

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