Civil Rights and the Right to Work: A New Book Finds Unexpected Connections between Two Movements That Shaped the 20th Century

By Bernstein, David | Reason, February 2016 | Go to article overview

Civil Rights and the Right to Work: A New Book Finds Unexpected Connections between Two Movements That Shaped the 20th Century


Bernstein, David, Reason


The Workplace Constitution: From the New Deal to the New Right, by Sophia Z. Lee, Cambridge University Press, 401 pages, $29.99

LABOR HISTORY is a dreary field dominated by activist-scholars. If they have any knowledge of economics at all, it typically has a Marxist spin. The relentlessly politicized nature of such scholarship has made it lamentably narrow in both subject matter and perspective.

Historian David Beito has shown that millions of American workers belonged to fraternal and mutual aid societies in the late 19th and early 20th centuries. But because these societies generally existed outside of union direction or control, labor historians have shown scant interest in admitting their existence, much less studying them.

For decades, meanwhile, these historians ignored or played down the fact that some of the most powerful unions in the United States, including the Railroad Brotherhoods and the American Federation of Labor construction unions, excluded African Americans, or at best relegated them to segregated locals. To the extent that these academics addressed the issue at all, they blamed union exclusion on black workers' strikebreaking, blamed employers for playing off white and black workers against each other, or pointed to relatively progressive Congress of Industrial Organizations (CIO) unions and to unions' political support for the civil rights movement starting in the 1950s as making up for all prior sins.

When a younger generation of labor historians no longer could brush aside race, they nevertheless began with the assumption that class solidarity "should" naturally lead to racially egalitarian unions. The problem, these scholars concluded, lay with the essential conservatism of American unions, with the role of big business in encouraging racial conflict, and with the government's suppression of radical unions to the advantage of more conservative ones. Deviations from this party line, especially deviations that reflected the insights of neoclassical economics, public choice, and cartel theory, typically came from outside the labor historian guild, as was the case with the Hillsdale College historian Paul Moreno's excellent 2006 book Blacks and Organized Labor: A New History and my own 2001 book Only One Place of Redress: African Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal.

Sophia Lee's The Workplace Constitution brings more fresh air to this stale field. Lee, a law professor and historian at the University of Pennsylvania, doesn't so much challenge the dominant paradigms of labor history as ignore them. And by ignoring them, she is able to address matters that labor historians have neglected.

As Lee relates, in the 1930s union activists hoped that labor legislation would lead to a "workplace constitution" in which the "right to organize" and ultimately other "social rights" would be constitutionally protected. Labor historians have spilled a great deal of ink explaining why that did not happen, typically (once again) blaming the "conservatism" of American unions. Unlike European unions, which embraced various forms of state socialism from social democracy to communism, most American unions were fundamentally committed to a more libertarian political and economic system.

Lee, by contrast, focuses on what happened next: Civil rights activists attempted via litigation to establish their own set of workplace rules, which she calls the "liberal workplace constitution."

African Americans had historically been skeptical of the labor movement because of the deep-rooted discriminatory policies that many of these unions pursued. But black leaders embraced labor unionism in the 1930s, for three major reasons. First, union membership was growing dramatically under the federal government's sponsorship, and there seemed no choice but to try to join the union bandwagon and hope it took blacks aboard. Second, the new CIO unions tended to be ideologically sympathetic to civil rights, and their broad-based industrial model made excluding any group counterproductive. …

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