Only One Place of Redress: African Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal
Baird, Charles W., Ideas on Liberty
Only One Place of Redress:
African Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal
by David E. Bernstein
Duke University Press * 2001 * 189 pages * $39.95
Reviewed by Charles W Baird
Most black people believe that history demonstrates the necessity of labor-- market regulations on their behalf. The message of this book is that the one place of redress blacks (and other minorities) had against discriminatory state and federal economic regulations was the court system guided by the principles of what came to be called, and later was excoriated as, Lochnerian jurisprudence. The free market, protected by the courts following long-established precedents, was the friend of black workers; politics was the enemy.
In 1905 the U.S. Supreme Court in Lochner v. New York, struck down a state regulation setting maximum working hours on the grounds of freedom of contract. From then until 1937 the Court frequently struck down economic regulations for that reason and because class legislation-which benefited special interests at the expense of others-was illicit. Conventional wisdom holds that Franklin Roosevelt's 1937 defeat of Lochnerian jurisprudence (by his Court-- packing threat) was a great triumph in the battle for social justice. To the contrary, Bernstein argues, Roosevelt's triumph was a blow to the interests of blacks.
The first chapter of this well-researched book examines the emigrant-agent laws passed in several southern states to inhibit black workers from migrating from low-- wage to higher wage states. Typically, the laws required the agents-who informed workers of better opportunities elsewhere, recruited them to relocate, and helped them do so-to pay exorbitant licensing fees and imposed severe penalties for failure to comply. Plantation owners and other employers in the out-migration states lobbied for such legislation to keep their black labor force captive. The agents, however, were often able to overturn such laws in courts on Lochnerian grounds (even before the Lochner decision).
Chapter two focuses on the use of occupational licensing laws to discriminate against blacks in plumbing, barbering, and medicine. The Supreme Court upheld licensing of physicians in 1888 on public-health grounds. In 1921 the Court empowered state legislatures to set up licensing boards for other occupations with the authority to "determine the subjects of which one must have knowledge; the extent of the knowledge in each subject; the degree of skill requisite; and the procedure to be followed in conducting the examination." In the cases of plumbing and barbering, white unions exploited the licensing statutes to exclude blacks. In medicine the 1910 Flexner report was used by white elitist medical associations to close black medical schools and prevent blacks even from sitting for licensure exams. …