Tuesday, January 26, 2016

Only One Place of Redress? How the Supreme Court Unleashed Racist Terror and Divided White from Black Workers

Guest Blogger

For the Symposium on the Constitution and Economic Inequality

James Gray Pope

The gap between rich and poor in the United States yawns wider than in any other first-wave industrialized country.  Why?  One influential explanation points to the failure of American workers to build a class-wide movement for economic redistribution and social welfare protections.  While European working classes were developing durable socialist movements during the decades around the turn of the twentieth century, the American working class fractured into craft unions that focused on collective bargaining for the immediate self-interest of their members.  In his influential book, Law and the Shaping of the American Labor Movement, William Forbath suggested that law contributed crucially to this failure.  American workers did launch struggles for broad, class-wide objectives, but judges repeatedly and forcefully directed them toward more parochial concerns.  For example, courts struck down hard-won reform legislation and selectively enjoined inclusive forms of labor organization like industry-wide (as opposed to craft) unions.
My contribution to the symposium explores the involvement of law and courts in constructing another, related barrier to class-wide political and economic action.  As Forbath recognized, “ethnic and racial cleavages will surely remain central” to any full explanation for American working-class weakness.  In particular, white workers have often chosen to ally with economic elites against workers of color.  This poses a serious problem for opponents of racial and economic inequality alike.  The great critical race scholar Derrick Bell, for example, argued that African Americans can advance on issues of race only when whites also benefit.  One way to secure this “interest convergence,” he observed, is to ally with lower-class whites "who, except for the disadvantages imposed on blacks because of color, are in the same economic and political boat."  Unfortunately, however, white workers have rarely acted on these shared interests.  They stood with white planters against slave revolts, for example, "even though the existence of slavery condemned white workers to a life of economic privation," and they excluded black workers from their unions, thereby "allowing plant owners to break strikes with black scab labor."  To Bell, such choices reflect a form of racism so virulent and deeply rooted that it overrides economic rationality and blocks any hope of genuine racial equality or class solidarity.  In apparent despair, he warns that black Americans face permanent and irrevocable subordination because of “the unstated understanding by the mass of whites that they will accept large disparities in economic opportunity in respect to other whites as long as they have a priority over blacks and other people of color for access to the few opportunities available.”
I take as my starting point Bell’s compelling account of white workers repeatedly choosing racial over class unity.  It is possible, however, that racial attitudes do not provide a sufficient explanation for those choices.  "White workers,” as Martha Mahoney has written, “formed concepts of self-interest in a landscape which was not a vacuum but a set of substantial obstacles to solidarity."  Following Mahoney, I submit that law might have played a central role in erecting those obstacles.  Given the demonstrated tendency of human beings to develop group antagonisms along even random lines of cleavage without any material encouragement at all, it would seem that official law, backed by the armed power of the state, could erect formidable obstacles to solidarity.  By attaching serious consequences to racial categories, law could make them “real” in an experiential and practical sense.  When the situational force of law is considered, we may dissent from Bell’s conclusion that poor whites were "easily detoured into protecting their sense of entitlement vis-a-vis blacks for all things of value."
The story begins with a prequel.  In colonial Virginia, black and white bound laborers routinely cooperated in escapes and resistance.  During Bacon’s Rebellion of 1676, an army composed mostly of freed servants and slaves captured and burned Jamestown, the capital of Virginia.  The planters’ solution to this threat, according to historian Edmund Morgan, "was racism, to separate dangerous free whites from dangerous slave blacks by a screen of racial contempt."  The Virginia Assembly, elected not by poor whites but by landed gentry, constructed a legal order in which the poorest white laborer occupied a more exalted position than the most prosperous black planter.  Poor whites were rewarded economically and psychologically for assisting in the control of black slaves.  In this legal environment, black-white cooperation largely ceased.
By the time that the American working class began to form in the early 1800s, the Constitution and laws of the United States left no doubt that labor freedom, civil rights, and citizenship hinged crucially on being white.  The overwhelming majority of black Americans were enslaved, and the remainder were treated as presumptive slaves and denied the basic rights of citizenship.  Europeans like Daniel O' Connell and Karl Marx might urge white American workers to ally with black workers, but the immediate incentives all pointed the other way.  Thanks to law, white workers faced the choice of advancing through the established racial hierarchy or joining a radical egalitarian challenge to the constitutional order of the United States – a daunting task for workers whose natural allies in such an effort, black workers, were either enslaved or presumptively enslaved and voteless.
The Supreme Court upheld the Fugitive Slave Act and the presumption of slavery in Prigg v. Pennsylvania (1842), the first of three high-impact constitutional cases featured in my contribution.  Under Prigg, northern free blacks could be abducted, taken to a slave state, and enslaved without any opportunity to prove their freedom.  From a jurisprudential point of view, Prigg is noteworthy for its extraordinary emphasis on purposive, as opposed to technical-legal concerns.  Justice Story waxed eloquent about the necessity for effective national power to protect the slave owner’s “absolute right” to recover his slave (such that merely to delay or restrict it would amount to an unacceptable infringement), while downplaying state autonomy and neglecting even to mention the due process rights of northern free blacks.

The Civil War radically disrupted hierarchies of both race and class.  Taken together, the Reconstruction Amendments combined black and white laborers into a single class composed of citizen workers.  For the first time since the American Revolution, black and white workers and farmers crossed race lines to form political and economic alliances.  “It was only when they saw the Negro with a vote in his hand, backed by the power and money of the nation,” reflected W.E.B. DuBois, “that the poor whites . . . began to conceive of an economic solidarity between white and black workers.”  Not only did black voters constitute a majority of the electorate in three states and large minorities in several others, but – under peaceful conditions – black voter turnout commonly exceeded eighty percent.  The planters’ solution to this problem was terror.  Between 1868 and 1871, the planters and their allies launched a ruthless campaign of violence, evicting, flogging, and killing black leaders and their supporters with the aim of destroying all manifestations of black political and economic organization. Although blacks bore the brunt, their white allies also suffered.  “Ye white men who stick to black, soulless beasts [and] Ye niggers who stick to low White,” commanded one Klan broadside, “Begone, Begone, Begone!”

Congress responded vigorously with the Enforcement Acts of 1870 and 1871, which criminalized conspiracies to interfere with constitutional rights.  But in United States v. Cruikshank (1876), the Supreme Court effectively nullified the Acts as applied to most terrorist attacks.  Jurisprudentially, Chief Justice Waite’s opinion for the Court presented a negative image of Story’s in Prigg.  Waite stressed technical legal analysis and neglected even to mention the purpose of the Reconstruction Amendments.  He expounded upon the importance of state autonomy while failing to consider either the need for effective national power or the fact that in Cruikshank, the national government was assisting the state government of Louisiana in a struggle for survival against paramilitary insurgents.  Waite diligently protected the due process rights of the white supremacist defendants while ignoring the impact of the ruling on the practical ability of black Americans to exercise their constitutional rights.
Cruikshank terminated the day-to-day enforcement of civil rights in the South.  During the following three decades, it exerted a devastating impact on mixed-race organizing.  The Knights of Labor, the southern agrarian populist movement, and the American Federation of Labor each launched serious attempts to unite whites with blacks in a laboring class movement.  Each of these efforts succumbed, however, to forces unleashed by Cruikshank and immunized by subsequent Supreme Court decisions, most prominently Giles v. Harris and Hodges v. United States.
This brings us to the Lochner Era, roughly 1895-1937.  As recounted in Forbath’s book, Lochner-Era courts enjoined broad forms of labor activity and organization, which tended to be more racially inclusive.  Since Forbath wrote, however, a number of scholars have attempted to “rehabilitate” the Lochner Era’s reputation.  According to David Bernstein, for example, the Lochner-Era judiciary provided the “only . . . place of redress” for black workers.  Given that the great majority of unions excluded blacks, and that some labor law reforms (for example, occupational licensing laws) severely disadvantaged them, black workers could benefit from court decisions restricting unions and invalidating labor laws.  Bernstein makes an important contribution here.  I would submit, however, that he neglects to consider the full picture.  Black workers entered the period as supplicants to courts because their own organizations had been suppressed by white paramilitaries and one-party state governments, both of which had been insulated against federal law enforcement by Supreme Court rulings like Cruikshank, Giles, and Hodges.  And white workers chose to exclude black workers from their organizations partly because of incentives created or solidified by those same decisions.
Moreover, as Forbath relates, Lochner-Era judicial decisions exerted withering effects on industrial (as opposed to craft) union organizing.  Industrial unions typically welcomed black workers, and some had substantial black memberships. But industrial unions were also especially vulnerable to labor injunctions.  The single most important case was In re Debs (1895), the third of the three constitutional cases featured in my contribution.  The Court upheld the contempt conviction of American Railway Union President Eugene V. Debs for violating a federal court injunction that banned any person from, among other things, persuading any employee of 22 listed railroad corporations from going on strike.  Jurisprudentially, Debs echoed Prigg and presented a negative image of Cruikshank.  Unlike the bloody paramilitary insurrection in Cruikshank, the mostly peaceful railroad strike presented a “special exigency, one which demanded that the court should do all that courts can do.”  Accordingly, Justice Brewer stressed the purposes of the commerce clause (for example protecting the “freedom of interstate commerce”) to the point that the need for strong national law enforcement trumped state autonomy and Debs’s due process right to a jury trial.
I conclude by suggesting that, when it mattered most, the Supreme Court made its choices between purposive or formalist reasoning, national power or state autonomy, and weak or strong due process protection with little apparent logic other than solicitude for the interests of southern planters and industrial employers. Although the Court did serve as a place of redress for some black workers, it intervened far more aggressively and effectively as an ally of white supremacists seeking to subjugate black labor.

James Gray Pope is Professor of Law and Sidney Reitman Scholar at Rutgers-Newark School of Law. You can reach him by e-mail at jpope at

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