Pope on Law, Race, and the Sombart Question

James Gray Pope, Rutgers-Newark Law School, has posted his contribution to that symposium, forthcoming in the Texas Law Review, on The Constitution and Economic Inequality. Pope’s paper is Why is There No Socialism in the United States?  Law and the Racial Divide in the American Working Class:

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 historic failure of American workers to build a class-wide movement for economic redistribution and social welfare protections. This paper, written for a symposium on the Constitution and economic inequality, examines the role of law in dividing white workers from workers of color. As a causal explanation for racial divisions, law has a variety of competitors. The paper assumes that psycho-cultural racism, which was very much in evidence before the legal consolidation of race-based slavery, engendered polarization. It also assumes that certain groups of white workers, most importantly skilled craft workers, benefited economically from black subjugation – at least in the short run. These factors were not, however, sufficient to prevent American workers from overcoming racial divisions and joining in united action during critical periods. At those times, law could tilt the balance in favor of cross-class white racial solidarity. The paper suggests that law played an especially important role in two periods: one following Bacon’s Rebellion of 1676, when law constituted white laborers as a control stratum over both enslaved and free blacks, and one during and after Reconstruction, when the Supreme Court immunized white supremacist paramilitary insurgency against federal and state law enforcement.