In Only One Place of Redress David E. Bernstein offers a bold reinterpretation of American legal history: he argues that American labor and occupational laws, enacted by state and federal governments after the Civil War and into the twentieth century, benefited dominant groups in society to the detriment of those who lacked political power. Both intentionally and incidentally, claims Bernstein, these laws restricted in particular the job mobility and economic opportunity of blacks.
A pioneer in applying the insights of public choice theory to legal history, Bernstein contends that the much-maligned jurisprudence of the Lochner era—with its emphasis on freedom of contract and private market ordering—actually discouraged discrimination and assisted groups with little political clout. To support this thesis he examines the motivation behind and practical impact of laws restricting interstate labor recruitment, occupational licensing laws, railroad labor laws, minimum wage statutes, the Davis-Bacon Act, and New Deal collective bargaining. He concludes that the ultimate failure of Lochnerism—and the triumph of the regulatory state—not only strengthened racially exclusive labor unions but contributed to a massive loss of employment opportunities for African Americans, the effects of which continue to this day.
Scholars and students interested in race relations, labor law, and legal
or constitutional history will be fascinated by Bernstein’s daring—and controversial—argument.
About the Author
David E. Bernstein is Associate Professor of Law at George Mason University School of Law and coeditor of Phantom Risk: Scientific Inference and the Law.
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ONLY ONE PLACE OF REDRESSAfrican Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal
By David E. Bernstein
DUKE UNIVERSITY PRESSCopyright © 2001 Duke University Press
All right reserved.
Chapter OneEmigrant Agent Laws
ABOLITION OF SLAVERY WAS an economic disaster for white plantation owners in the South. Not only did emancipation destroy much of their capital wealth, but mobile, free African American laborers replaced a docile supply of African American slave labor. In response to African Americans' new market power, planters lobbied their state and local governments to regulate the labor market to African Americans' detriment. This chapter focuses on one type of law used to restrict African American workers-"emigrant agent" laws that inhibited the interstate recruitment of workers.
THE SOUTHERN LABOR MARKET AFTER THE CIVIL WAR
Consistent labor shortages in the post-Civil War South led to fierce competition among planters for African American workers, who generally were not inclined to remain on their former masters' plantations. Just after the Civil War, various southern states passed explicitly discriminatory "Black Codes" to control African American workers. The more severe laws practically recreated slavery for African American agricultural workers by prescribing their labor terms indetail.
The federal 1866 Civil Rights Act invalidated these laws. The act granted African Americans the same rights to make and enforce contracts "as is enjoyed by white citizens," as well as equal protection of the laws. Passage of the Fourteenth Amendment ensured the constitutionality of the act.
Reconstruction governments repealed or ceased enforcing all explicitly discriminatory laws within a few years of passage of the Civil Rights Act. African Americans' wages rose from the implicit subsistence wage of slavery to a wage closer to the value of their marginal labor product. Although the vast majority of African Americans remained dependent agricultural workers, they were willing to move when an opportunity to improve their situation or the prospects for their children presented itself. Many of those who did not take direct advantage of their mobility nevertheless used it to their advantage by demanding better employment terms. As one scholar notes, "during the period from 1865 to 1880 the action of supply and demand enforced more freedom for the Negro than any of the post-bellum amendments to the Constitution of the United States."
Of course, as generally unskilled, often illiterate workers living in an impoverished, war-ravaged region, most African American workers were extremely poor, and many remained so for decades. African American workers' prospects were further dimmed by official and informal white violence and lawlessness, and the refusal of southern governments to give them the same basic public services routinely provided whites. Nevertheless, African Americans' ability to migrate ensured that employers could not easily pay them below-market wages, and African Americans' living standards gradually improved as the southern economy recovered.
Employers responded to rising African American wages after the Civil War by attempting to create voluntary cartels to assure a noncompetitive labor market. Despite appeals to class interest and white solidarity, the employers' attempt to form cartels did not survive the strain of the marketplace. Individual planters offered continuously higher wages and better working conditions to entice African American workers to their plantations.
When landowners found themselves unable to create viable voluntary cartels to control labor costs, they turned to violence and government compulsion to restrict the free market in labor, particularly after Reconstruction governments fell to the "Redeemers." Because the Fourteenth Amendment outlawed overt legislative discrimination, the planters lobbied for facially neutral legislation that would subdue labor market forces. Planters were particularly keen to promote legislation restricting African American workers' mobility.
Certain facially neutral provisions of the Black Codes designed to restrict African American labor mobility and guarantee a labor supply for planters survived Reconstruction. For example, Republican governments had not repealed laws providing for the hiring out of prisoners convicted of minor offenses. These laws were often used to procure labor for planters, to force African Americans to fulfill the terms of their labor contracts-even if their employers were cheating them-and to keep "troublemakers" in "their place."
Moreover, by the end of Reconstruction, Alabama, Georgia, North Carolina, and Florida still had "enticement" laws that made it a crime, rather than simply a tort, to hire a worker who was under contract with another employer. Vagrancy statutes promulgated in 1866 in Georgia, North Carolina, Texas, and Virginia, also survived. These laws-which essentially criminalized unemployment, even temporary unemployment-had almost never been enforced during Republican rule.
INTERSTATE MIGRATION BY AFRICAN AMERICANS AND THE RISE OF EMIGRANT AGENT LAWS
In contrast to vagrancy and enticement laws, emigrant agent laws were largely a post-Reconstruction innovation. Between the Civil War and World War I, African Americans migrated in substantial numbers within the South. Over the years, agents representing planters in the higher-wage states of Mississippi, Arkansas, Louisiana, and Texas recruited tens of thousands of African Americans from the lower-wage states of Alabama, Georgia, North Carolina, and South Carolina.
With or without emigrant agents, determined individual men almost always found a way to migrate. Emigrant agents were nevertheless helpful to such migrants because the agents lowered the information costs of migration by using their resources to advertise distant opportunities. Agents also often subsidize the economic costs of migration by either paying for or advancing the money for migrants' train tickets. The agents sometimes even retired debts their recruits owed to plantation owners. Migrants also preferred to affiliate with agents because the agents provided guaranteed employment, ensuring that migrants could leave their old jobs without fear of arrest for vagrancy.
While emigrant agents were of some help to individual migrants, they played a crucial role in group migration, which involved daunting information and economic costs. Some groups of African Americans overcame these costs by forming migration societies. More often they relied on agents; even large families had great difficulty moving without the help of an agent. As historian William Cohen concludes, "In the main, ... large-scale long-distance movement in the era before World War I required the agents' participation."
Many historians treat intrasouth long distance migration by African American farmworkers as at best largely inconsequential, and at worst a product of African American self-deception or false promises by emigrant agents. In fact, group migrations within the South were crucial to African American welfare for several reasons. First, such migrations were a potent form of political protest, and one of the few forms of protest available to African Americans after Reconstruction and subsequent disenfranchisement. African Americans frequently deserted regions in response to lynchings and other forms of white lawlessness, or in response to unfavorable legislation. African Americans moved to places where they could expect relatively good treatment or had relatively good economic prospects. "Mobility," one historian notes, "became the most pervasive form of resistance."
Second, in the era before the welfare state, emigrant agents helped groups of destitute African Americans flee areas devastated by flood, drought, or boll weevils and other pests. Finally, and perhaps most important, mass migration, and even the threat of such migration, was critical to improving the treatment of African Americans by white southerners. In response to large-scale migrations, many plantation owners and other employers raised wages, improved the living and working conditions of African Americans, and, with the cooperation of local and state government, granted African Americans greater educational opportunities and greater protection in their property and person. Because African Americans could migrate when faced with economic hardship, African American living standards rose even during the worst period of post-Civil War American political racism, from 1895 to 1915.
Planters in states or regions hit with widespread out-migration were disturbed by the agents' threat to their labor supply. They therefore lobbied for laws that would curtail the agents' activities. Unlike antienticement laws, emigrant agent laws did not target employers who recruited workers already under contract to another employer. In fact, emigrant agents frequently recruited workers after the fall harvest and before the spring planting season, when African American workers were not under contract.
Opposition to emigrant agents and African American migration, therefore, was not a question of enforcing contracts or ensuring that planters could recoup the value of the materials they often advanced their employees. Rather, planters sought to discourage or effectively ban emigrant agents to inhibit a free market in labor. As William Cohen argues, "To the extent that the North had imposed a free labor system on the South, the agents represented that system in operation." Therefore, one cannot understand the operation and attempted suppression of the labor market in the postbellum South without understanding emigrant agent laws.
EARLY EMIGRANT AGENT LAWS
Virginia imposed the first known statute restricting emigrant agents in 1870. The law required labor agents to pay an annual license fee of twenty-five dollars. Over the next two decades, much more onerous emigrant agent laws were promulgated in the states most affected by African American out-migration: Alabama, Georgia, North Carolina, and South Carolina. Agents challenged the laws in the first three of these states. The Georgia Supreme Court upheld its state's emigrant agent law, but the Alabama and North Carolina supreme courts declared their states' emigrant agent laws to be unconstitutional. In 1900 the United States Supreme Court upheld Georgia's emigrant agent law in Williams v. Fears. After Williams, emigrant agent laws spread throughout the South.
Georgia's Emigrant Agent Law
In 1873 approximately twenty thousand African American residents of Georgia migrated to other southern states. In response to this threat to Georgia's labor supply, a Georgia lawmaker proposed to require each county in the state to impose a license tax on "immigrant brokers," but the bill was rejected.
In 1875 thousands of African American agricultural workers left Georgia for Arkansas, Mississippi, and Louisiana. This time the Georgia legislature passed a law that required labor agents recruiting for out-of-state concerns to pay a fee of one hundred dollars per county.
Two emigrant agents paid the hundred-dollar fee, then filed a petition with the Sumter Superior Court asking that the law be declared void and that their money be returned. The court denied the writ. The plaintiffs then appealed to the Georgia Supreme Court.
The plaintiffs argued that the emigrant agent statute was unconstitutional because "the subject matter of the Act as well as its obvious object [is] that of preventing colored laborers from being induced to leave this state to be employed in another state." The plaintiffs also argued that the law was illicit class legislation because it applied only to those who chose to recruit laborers for out-of-state employment, but not to those who chose to recruit labor for in-state employment.
The Georgia Supreme Court upheld the law in Shepperd v. County Commissioners. The court contended that it was an inherently legitimate function of the state to disfavor people who tried to recruit state residents to migrate to other states. The legislature soon raised the amount of the emigrant agent tax to five hundred dollars.
The Kansas Exodus and Alabama's Emigrant Agent Law
From 1873 to 1875 labor agents helped thousands of African Americans abandon Alabama for Mississippi and other southern states. In December 1876 the Alabama legislature considered a proposal to impose an annual license fee of five hundred dollars on emigrant agents in each county where they worked. Due to opposition in strong Republican areas where many African Americans resided (and still voted), the legislation was defeated. In January 1877 the legislature passed a watered-down law that set the fee at one hundred dollars per county and restricted its scope to fourteen specified Black Belt counties.
In reaction to the withdrawal of federal troops from the South in 1876, between 1877 and 1880 tens of thousands of African Americans fled north, mostly to Kansas. Many white plantation owners feared they would lose their labor supply. Some responded with violence against African American migrants and their leaders. Others lobbied their legislatures to restrict the activities of emigrant agents. In January 1879 the Alabama legislature revised the state's emigrant agent law to cover an additional seventeen counties. The following year the legislature raised the license fee to $250 per county.
An agent was arrested for violating the statute, and he challenged the constitutionality of the law. In argument to the Alabama Supreme Court, the agent's attorney, appealing to free labor ideology, argued that the statute violated the "natural right to labor for subsistence" protected by the Alabama and United States constitutions. The agent emphasized that the act impaired the laborer's right to emigrate because it "prevents advances to enable him to leave, on the faith of his promise to labor in his new home."
In response, the state admitted that it passed the law to stem the Kansas exodus, and to otherwise prevent African-American agricultural workers from pursuing opportunities out of state. The state argued the statute was necessary because recruitment of African American workers was "endangering the farming interests."
In one of the earliest Lochnerian decisions, the Alabama Supreme Court held that the law was unconstitutional. The court concluded that the $250 license tax amounted to far more than the value of a laborer's work. The tax was therefore prohibitory, and "its natural effect, pursuant to its obvious purpose, [was] to seriously clog and impair the laborer's right of free emigration." The court pronounced the law "void as an indirect tax upon the citizen's right of free egress from the State, operating to hinder the exercise of his personal liberty, and seriously impair his freedom of emigration."
Peg-Leg Williams and the North Carolina Emigrant Agent Law
In 1881 the North Carolina Senate, apparently responding to a relatively large-scale migration of North Carolina African Americans to Indiana between 1879 and 1880, voted in favor of proposed restrictions on emigrant agents similar to those enacted in Georgia and Alabama. The state House of Representatives did not pass similar legislation, however, so the proposal never went into effect.
About a decade later a resurgence in African American migration from North Carolina, apparently prompted by passage of a discriminatory election law, led to calls for restrictions on emigrant agents. Robert A. "Peg-Leg" Williams, known in the South as the "king of labor agents," actively promoted the migration. A Civil War veteran and native of Mississippi, Williams lost a leg while serving in Forrest's Cavalry during the war. One newspaper described him as "the Moses of the Carolina exodus, the Brer Fox of his profession, the luckiest, pluckiest, spryest labor agent south."
By 1890 Williams claimed to be able to document having moved more than eighty thousand people over the previous seven years. He also claimed responsibility for moving more than twenty thousand people over the five-month period beginning in October 1889, of whom sixteen thousand were from North Carolina.
North Carolina planters grew impatient with Williams's recruitment of their workers. A North Carolina landlord told the legislature: "We are bothered by people from other states persuading away our laborers, which ought to be a criminal offense." The Tarboro Southerner approvingly reported that in several cases mobs obstructed the activities of emigrant agents. A law enforcement official in Charlotte attempted to stymie Williams by arresting him on bogus charges. Initially, a judge refused bail. A sympathetic railroad ticket agent wrote a poem in Williams's honor:
Peg Leg Williams, Charlotte jail; Peg Leg Williams, Can't give bail.
Excerpted from ONLY ONE PLACE OF REDRESS by David E. Bernstein Copyright © 2001 by Duke University Press. Excerpted by permission.
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Table of Contents
1. Emigrant Agent Laws
2. Licensing Laws 121
3. Railroad Labor Regulations
4. Prevailing-Wage Laws
5. New Deal Labor Laws 353
Section 1: Federal Acts and Resolutions 486
Section 2: State Legislation 519
Section 3: Municipal Resolutions 537
Section 4: Advocacy and Activism 560
Section 5: Case Studies of Redress
Section 6: Lawsuits 661
Selected Bibliography 673
Acknowledgment of Copyrights 687 687