an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Paul Frymer's Black and Blue: African Amerians, the Labor Movement, and the Decline of the Democratic Partyis an exceptional study of the relationships between the civil rights and labor movements during the second half of the twentieth century. Professor Frymer of the University of California, Santa Cruz, challenges both the common view in political science that courts cannot bring about social change, and the common view in law that courts are desirable agents for social change. The result is a far more nuanced understanding of the role of courts in American political and constitutional development. Judicial decisions matter, but they matter for reasons that confound scholars and policy activists. The book also tackles important problems in the politics of race. Race matters Professor Frymer concludes (not exactly a surprise so far), but race matters as a political phenomenon intertwined with constitutional institutions, and not simply as bad thoughts. Some institutions are structured in ways that privilege racism, others in ways that promote liberal equality. The American labor regime, alas, too often had the former characteristics.
Professor Frymer’s story begins with African-Americans seeking entry to labor unions. Entry is desirable because in the early to mid-New Deal Order, labor unions promised members both economic security and political power. Entry was also problematic because whereas previous labor struggles had pitted liberals against conservatives, efforts to integrate labor unions pit racial liberals against economic liberals. The challenge was how to achieve the goals of both so that each would remain a pillar of liberal political power. This challenge was not successfully hurdled. Black and Blue highlights how labor and civil rights had, in effect, established separate governing regimes during the 1930s and 1960s. The result was that when civil rights decisions were made consistent with the regime set up by the Civil Rights Act of 1964, those rulings frequently weakened the labor friendly regime set up by the Wagner Act of 1936.
Litigating civil rights had far more ambiguous results than inherited wisdom proclaims, whether that wisdom celebrates or bashes courts. On the one hand, Frymer documents a liberal success story. Contrary to Gerald Rosenberg and others, courts were able to produce substantial integration. For reasons often unrelated to civil rights struggles, trial lawyers and judges during the middle of the twentieth century facilitated lawsuits as a means of vindicating legal wrongs. Courts could not reshape institutions on their own, but they could order large damages (notice the important riff on the autonomy of law here). These large damages attracted lawyers to civil rights causes and threatened to bankrupt racist unions. The result was a good deal of litigation, a good deal of success, and a good deal more integration as a result of that success than existing models claimed was possible. Controversial judicial decisions do get implemented when, for various reasons, judicial losers cannot rally sufficient political support and those decisions impose substantial financial burdens on the losers. Nevertheless, these victories came with unanticipated costs. The immediate problem with going through the courts was that judicial winner-take all decrees increased antagonisms between two vital democratic constituencies, thus weakening the power of liberals to make policy in general. Faced with liberal politicians unwilling to take clear sides between African-Americans and labor, many union members turned to more conservative politicians. Second, labor unions could be integrated only by means that weakened the economic and political capacity of unions. Thus, while unions are presently integrated and some are now almost completely non-white, unions no longer exercise the power than made them politically attractive to liberals during the late 1960s. Judicial decisions weakened seniority systems and independent labor government. Significantly, Frymer points out, much civil rights litigation on these matters was financed by corporate lawyers and law firms, who had little interest in unionization. In short, courts were able to facilitate black entry into labor unions only by weakening labor unions as a vehicle for black economic and political power.
There is substantial grist in this mill for students of American constitutionalism, American politics, and American political development. Professor Frymer is particularly effective when demonstrating how institutional strategies Democrats employed to consolidated power during the New Deal created a political clash that destroyed liberal power during the Great Society. The Roosevelt coalition moved along two institutional paths. On the one hand, that coalition sought to take labor policy away from hostile courts and vest authority in more friendly legislatures and administrative agencies. On the other hand, prominent New Dealers sought to take race policy away from conservative southern Democrats in Congress and vest that policy in the more liberal justices staffing the federal judiciary, particular the northern circuits. Much has been written on how the latter policy increased tensions between the northern and southern wings of the Democratic Party during the 1940s and 1950s, eventually resulting in the destruction of the solid South in 1964. What Frymer demonstrates is that the same institutional choices had a similarly destructive outcome in the north, as racial liberals who identified with courts did battle with economic liberals who identified with elected officials. His study of the particular details of this struggle, as well as the institutional circumstances that guided the struggle will be discussed for years to come. Posted
by Mark Graber [link]
My immediate reaction here is skepticism. I've seen some persuasive data showing that whites in the North vote Democratic at essentially the same rate as they did 50 or 60 years ago. What has changed is that whites in the South have left the Democratic party. Since unions pretty much didn't exist in the South in the 40s, 50s, and early 60s, I find it hard to attribute the move of the Solid South to racially integrated unions (as opposed to race issues generally).
Moreover, many economists have discussed the decline of unionism, but they attribute it to economic factors, including free market ideology and conservative governance, not to racial politics (though, of course, those are always in the background of conservative politics).
I think we can attribute a large part of the decline of unionism to the fact that the union movement succeeded: It changed the behavior of management in a positive way, even in industries which are not unionized.
Since being a member of a union has a number of serious downsides, (Dues, wages lost to strikes, your money being diverted to politics you disagree with...) to the extent that workers can secure much of the advantage of being unionized merely by having the threat of unionization looming in the background, why would they want to go ahead and unionize?
Management has learned that it's worth treating your workers well, to keep them from wanting to unionize. Given the costs to workers of unionism, this isn't as well as they might get treated with a union, but taking into account those costs, it's not a bad place for workers or management to be.
Barring legal intervention to bolster or attack unions, we should expect the union movement to decline until it's just barely strong enough to keep the threat plausible, and then stay there.
While racism still exists in unions as it does in all institutions, unions -- from locals to nationals -- are some of the most highly integrated bodies in the U.S. Also, blacks today are union members in a greater percentage than they are members of the population.
I haven't read Frymer, and it sounds interesting, but my initial reaction is similar to that of Mark Field.
As to Brett's point that unions are less attractive because of the gains unions have made is undercut by several factors.
First, there still is a significant wage premium for joining unions (it greatly exceeds the cost of dues). And there are other significant benefits to joining a union: just cause discharge protection, and some form of democratic input into your working life.
Second, in the *public* sector, union density rates are nearly 40% -- demonstrating that workers in the U.S. really do want to join unions (unless you believe secretaries, janitors, etc. in the public sector are entirely different types of people than those who do those jobs in the private sector).
Again, I think Mark Field is correct in identifying the more likely causes of declines in union rates in the private sector. I would really stress here the role of extremely aggressive anti-union tactics, which routinely include explicitly illegal tactics, facilitated by the startlingly trivial remedies for employer violations of National Labor Relations Act.
Js, the high rate of unionism in the public sector comes under that "legal interventions" catagory: Given that one of the two major parties is allied with the union movement, and much of the time is playing the part of management, why wouldn't you expect them to be pushing workers to unionize, and thus entrench their own allies?
Indeed, there's a substantial wage premium for workers who unionize and don't subsequently lose their jobs. Employees looking at unionization from the vantage of the not yet unionized have to care a great deal that unionizing will result in fewer better paid workers: They've got no guarantee at all that they'll be among the still employed.