Tuesday, July 1, 2008

Bernstein on The Law and Economics of Post-Civil War Restrictions on Interstate Migration by African-Americans

David E. Bernstein, George Mason University School of Law, has just posted The Law and Economics of Post-Civil War Restrictions on Interstate Migration by African-Americans. The paper became of chapter of his book, Only One Place of Redress: African Americans, Labor Regulations and the Court from Reconstruction to the New Deal (Duke University Press, 2001). Here's the paper abstract:

In the decades after the Civil War, southern states attempted to prevent African-Americans from migrating by passing emigrant agent laws. These laws essentially banned interstate labor recruitment. The Supreme Court upheld emigrant agent laws in the little-known case of Williams v. Fears in 1900. The history of emigrant agent laws provides evidence that: (1) state action played a larger role in discrimination against African-Americans than is generally acknowledged; (2) laissez-faire jurisprudence was potentially helpful to disenfranchised African-Americans; and (3) the federalist structure of the U.S. provided African-Americans with opportunities to improve their lot through internal migration. Chapter 1 of the book Only One Place of Redress: African Americans, Labor Regulations and the Courts from Reconstruction to the New Deal (Duke University Press 2001) is based on this Article.
And here's the book description and reviews:

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 otivation 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.
“A provocative revisionist overview of legislation regulating labor relations. This will undoubtedly receive a great deal of attention from historians and students of the Constitution, and for good reason.”—Mark Tushnet, author of Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961–1991

“Only One Place of Redress presents a bold reinterpretation of the relationship between governmental regulations of the marketplace and economic opportunity for blacks. Bernstein challenges the conventional wisdom and invites readers to reconsider breezy assumptions about how employment regulations operated.”—James W. Ely, Jr., author of The Guardian of Every Other Right: A Constitutional History of Property Rights

“[A] short and sharp challenge to the prevailing narrative of the emergence of the contemporary American welfare state. . . . Bernstein’s uniquely unsentimental account of African-American and labor history is indispensable to serious reflection on these issues, and clears the way for a reconsideration of whether blacks might be better served by the principles of limited government, property rights, and liberty of contract.” --Ken I. Kersch, The Public Interest

“Bernstein advances a robust thesis. . . . [T]his readable and provocative book underscores the complexity of the race question in America and its connection with facially non-racial legal and economic principles.” --Brian K. Landsberg, The Law and Politics Book Review

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