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American Political Science Association

Conference on Constitutional Law

June 5–8, 2002
Washington, D.C.

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The End of the Second Reconstruction

Influence of New Deal Regulatory Legislation on the Second Reconstruction

David E. Bernstein
George Mason University School of Law

This paper starts with the premise that to understand the decline of the Second Reconstruction, it is helpful to understand the origins of the concerns that dominated civil rights politics of the era. This paper argues that federal intervention in the labor market during the New Deal created a felt need for federal intervention to protect African Americans from the consequences of that regulation. The first racial quotas, the first Supreme Court decision stating that African Americans had a right to be free from discrimination in the employment context, the first federal civil rights agencies, the love/hate relationship of civil rights organizations with organized labor, and other prominent aspects of the Second Reconstruction all had their origins in regulatory legislation, primarily labor legislation, of the New Deal period.

I. Davis-Bacon Act Amendments of 1935

The Davis-Bacon Act of 1931, required that federal construction contractors pay their workers the local “prevailing wage.” The Act was promoted as a way of aiding union labor at the expense of “bootleg” workers, especially African Americans. The vagueness of the prevailing wage requirement inhibited this goal until passage of the 1935 amendments. The amendments, as interpreted by the Department of Labor, dictated that the prevailing wage was the union wage, and that contractors must follow union work categories. The amendments undercut African American workers’ primary advantage in the construction labor market-their willingness to work at market wages instead of union wages. Once required to pay union wages, employers hired almost exclusively through craft unions, which in turn almost universally either excluded African Americans or relegated them to second class Jim Crow locals. The heavy bias of union work rules in favor of skilled labor and formal apprenticeship programs also operated to African Americans’ detriment, because they were disproportionately unskilled workers, and were excluded from most apprenticeship programs.

The 1935 amendments led to virtual exclusion of African Americans from large-scale public construction projects. Concern about the exclusion of African Americans from federal construction jobs led to the first quotas in American history, undertaken by the Public Works Administration during the 1930s. Exclusion from construction jobs also was a significant factor in FDR’s establishment of the Fair Employment Practices Commission during World War II, the first federal agency charged with combating discrimination against African Americans. The federal EEOC was modeled to some extent on the arbitration-oriented FEPC and similar state commissions.

The significance of the issue of exclusion of African Americans from public works projects in the years leading up to passage of the 1964 Civil Rights Act is illustrated by the fact that one of Eisenhower’s only civil rights initiatives was to establish the President’s Committee on Government Contracts. This committee was charged with the task of alleviating discrimination on public works projects. President Kennedy’s Committee on Equal Opportunity (PCEO), meanwhile, required contractors to submit compliance reports discussing the racial practices of unions dealt with by these contractors. This was one of the few civil rights achievements of the Kennedy Administration. However, neither Eisenhower nor Kennedy was willing to take on the unions, which were primarily responsible for the exclusion of African Americans from public works projects.

Passage of the 1964 Civil Rights Act did not initially substantially help African American construction workers, because unions managed to evade the law. The Nixon Administration’s Department of Labor believed that abolishing Davis-Bacon would be the most effective means of increasing minority employment on public works projects, but feared a direct confrontation with the building trades unions. The Department instead decided to launch affirmative-action “city plans,” which in effect amounted to quotas, in order to encourage the use of skilled minority workers in federal construction projects. Indeed, the earliest decisions of the Second, Fifth, Sixth, Seventh, and Ninth Circuits uphold­ing quotas all involved discriminatory craft unions that greatly benefitted from Davis-Bacon.

II. Railway Labor Act Amendments of 1934

The Railway Labor Act of 1926 began the process of cartelizing the railroad labor market on behalf of the railroad unions, most of which excluded African Americans. In 1934, Congress completed the cartelization process by amending the Act to provide: “The majority of any craft or class of employees shall have the right to determine who shall be the representative of the class or craft . . . .” In other words, the union chosen by the majority of workers in a particular category defined by government regulations would now have the exclusive right to negotiate on behalf of all workers in that category. Moreover, despite Supreme Court precedent holding that yellow dog contracts (in which workers agreed not to join unions) were constitutionally protected, the 1934 amendments outlawed such contracts. The amendments also banned the formation of company-financed unions, which, at least as compared to the unions organized by white workers, had treated black workers well. By granting monopoly power to racist labor unions, these amendments led to the gradual exclusion of African Americans from semi-skilled positions where they had been prominent before federal interference.

After many thousands of African Americans lost their relatively well-paying railroad jobs, the issue of blatant union discrimination came before the Supreme Court in 1944 in Steele v. Louisville & Nashville Railroad, on of the Court’s first great civil rights cases. In Steele, the Supreme Court unanimously held that railroad unions, having been granted monopolies by the Railway Labor Act must represent all workers fairly, including blacks. This was the first time the Court had held that labor unions’ duty of fair representation included the obligation not to discriminate. Steele had only a marginal impact on railroad workers, but it was an important civil rights precedent, and an early indication that the Court believed that the growth in federal power required a growth in federal responsibility to ensure fair treatment for those affected by its power.

III. Minimum Wage Laws and the Agricultural Adjustment Acts

The Agricultural Adjustment Acts (AAAs) reimbursed white planters for taking land out of production, causing many owners to evict blacks tenant farmers from their land. The AAAs also accelerated the mechanization of farmland that remained in production, throwing thousands more unskilled black farm workers into the labor market. “All accounts of the impact of the [AAA] on blacks,” a recent survey concludes, “agree that it caused grave hardship and was the chief source of downward mobility for blacks in the South.”

At the same time, the wage provisions of the National Industrial Recovery Act, and, later in the decade, the Fair Labor Standards Act, destroyed a significant part of the low-wage employment base of African Americans in the South. The AAA and the FLSA were significant factors in pushing African Americans from the South to the industrial North and Midwest. Unlike in the South, where they were disenfranchised, these African American migrants became an important electoral constituency. Harry Truman recognized this, and partly for that reason supported the civil rights plank in the 1948 Democrat platform, leading to a walkout by the Dixiecrats. African Americans also played a crucial role in John F. Kennedy’s victory in 1960, leading to pressure for his administration to support civil rights legislation.

On the other hand, the economic dislocations caused in part by the AAA and FLSA were staggering. African American migrants to the North and Midwest arrived there just as the demand for unskilled factory labor was entering a precipitous decline. African Americans disproportionately entered occupations and regions that had unemployment rates well above the national average. According to economic historian Gavin Wright, “As early as 1950, black unemployment rates were between 10 and 15 percent in almost all the major points of southern in-migration; and the unemployment rates for new immigrants were staggering.” Relative unemployment in the inner cities of the North continued to increase as black workers poured in. The resulting social and economic tension was likely an important precipitating factor in an important feature of the Second Reconstruction, the urban riots of the 1960s, which first buoyed the movement for reform, and eventually helped to destroy it.

IV. The National Labor Relations (Wagner) Act.

The Wagner Act exacerbated the regional and cyclical unemployment problems faced by blacks in the North. The Act granted monopoly power to discriminatory unions, particularly AFL craft unions. ­In the industrial context, the CIO was reasonably egalitarian. The CIO became a crucial supporter of civil rights legislation, provided many civil rights activists with their first training in popular organizing, and demanded that blacks be given equal wages to whites. On the other hand, the CIO rarely demanded that employers adopt non-discriminatory policies in hiring, training, and promotion. Employers, exercising their own discriminatory preferences, or acceding to those of their workers, excluded African Americans from skilled and supervisory positions. They had no economic incentive to do otherwise, given that CIO demanded equal wages for all workers while not generally protesting against discriminatory hiring and promotion practices. Moreover, employers, increasingly responded to above-market wages unions were able to demand because of the power granted to them by the Wagner Act (mitigated somewhat by the 1946 Taft-Hartley Act) by relocating factories overseas and mechanizing, in the process eliminating unskilled labor jobs disproportionately held by African Americans.

V. Federal Regulatory Power and the Second Reconstrution

Bruce Ackerman argues that the specifics of how federal regulatory power was used during the New Deal aside, New Deal jurisprudence and the end of Lochnerism were necessary precursors to Brown v. Board of Education, and the subsequent judicial battle against state-sponsored segregation. Ackerman reasons that Brown resulted from an ideological shift from a laissez-faire mentality to the view that state action can and should change private preferences. Ackerman neglects to note, however, that the parties that lost in Brown were local governments that enforced public school segregation. It is hard to see how a Supreme Court decision invalidating local segregation laws can be construed as a victory for New Deal statism.

While the rise of activist government had little directly to do with the victory of the civil rights movement, it did shape the form that victory took. The growth of the American state during and after the New Deal allowed the government to intervene more dramatically in the labor market on behalf of blacks than classical liberal precepts of the sort that motivated the first Reconstruction would allow. Increased government regulatory power on behalf of dominant interest groups also created the need for counterbalancing this legislation with civil rights protections for African Americans, who were excluded from many of those groups.

If we consider that the principle factors that drove the success of the civil rights movement -African American migration to the North, the Cold War, World War II and the reaction against racism it engendered, the nationalizing influence of mass culture, were, with the partial exception of migration, independent of the New Deal-one can imagine that but for the interruption of the Great Depression and the New Deal, and the concomitant demise of classical liberalism as a vital American ideology, entirely different forms of civil rights protections could have arisen. Civil rights protections could have been of the sort envisioned by Reconstruction era Radical Republicans: a classical liberal combination of equal protection of the law, liberty of contract and free labor markets, and freedom of association. Instead, a more statist combination ultimately prevailed: interest group liberalism, the welfare state, and government enforcement of nondiscrimination norms against private parties.

The statism of the Second Reconstruction inevitably tied its fate to some degree to that of Big Government liberalism more generally. As the momentum behind the latter has declined, its not surprising that the Second Reconstruction has largely run its course.