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 kinoy.rutgers.edu