Excluding Unfit Workers: Social Control versus Social Justice in the Age of Economic Reform

By Bernstein, David E.; Leonard, Thomas C. | Law and Contemporary Problems, Summer 2009 | Go to article overview

Excluding Unfit Workers: Social Control versus Social Justice in the Age of Economic Reform


Bernstein, David E., Leonard, Thomas C., Law and Contemporary Problems


I

INTRODUCTION

Immigration, working poverty, and the relationship of women to the labor market are vital and contentious issues today, as they were a century ago, when some influential, progressive social scientists blueprinted and began constructing the house of American labor reform. New Deal liberals later expanded the edifice. This article documents that the original progressive architects, and some New Deal renovators, were partisans of human inequality. The labor legislation they pioneered was, in important respects, designed to exclude immigrants, women, and African Americans.

In section II of this article, we discuss the origins and development of a progressive economic ideology that favored, indeed demanded, the exclusion of various so-called "defective" groups from the American labor market. Xenophobia, race prejudice, and sexism certainly were not new to the United States in the Progressive Era. What was new was, first, the idea that protecting deserving workers required the social control of undeserving workers, enough so that labor-legislation advocates defended the exclusion of unfit workers not as an ostensibly necessary evil, but as a positive social benefit. Second, the exclusion of undesirables acquired a new scientific legitimacy: the Progressive Era marked not only the advent of the welfare state but also an extraordinary vogue for race thinking and for eugenics, the social control of human breeding. The new science of eugenics biologized the established discourses of bigotry and nativism, remaking undesirables into the hereditarily unfit and elevating exclusion to a matter of national and racial health. And the new sciences of society, especially economics, showed how unfit workers wrongly lowered the wages and employment of racially superior groups.

In section III, we discuss the practical impact progressive ideology had on labor reform in the 1930s. The intellectual heirs of progressivism used the prevailing economic crisis to promote previously unachievable government involvement in the labor market to the detriment of those deemed excludable. We first consider the Davis-Bacon Act, a law passed with the intent of preventing itinerant African American workers and others from competing with white labor unionists for jobs on federal construction projects. Next, we turn to New Deal minimum-wage legislation. The first national minimum wages were imposed by the National Industrial Recovery Act, which in turn begat the freestanding Fair Labor Standards Act. Architects of both laws knew the laws would create disproportionate unemployment among southern African Americans, an especially poor and vulnerable group. But most advocates of these laws saw the resulting unemployment, at worst, as an unfortunate necessity, and in many cases as a positive feature. The New Dealers were determined to destroy the low-wage industrial economy of the South and to promote a national "family wage," regardless of the immediate human toll on the unemployed. And the most efficient way to destroy the low-wage industrial economy was to ban low-wage employment.

Finally, we consider the resurrection and expansion of single-sex, state minimum-wage laws in the 1930s. Such laws had been held unconstitutional by the Supreme Court in 1923 (1) but were upheld by the Court in 1937. (2) The Court adopted the conventional wisdom in contemporary liberal circles: women who could not command a "living wage" as defined by statute should be expunged from the labor force. For the next several decades, the judiciary treated women workers' claims to equal treatment by labor law dismissively.

II

THE RISE OF PROGRESSIVE LABOR IDEOLOGY

A. Setting the Stage

The last one-third of the nineteenth century witnessed truly spectacular changes in American economic life. Following the Civil War, the United States industrialized on a revolutionary scale; the ensuing growth in productivity, in output, and in wealth was unprecedented in human history. …

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