Only One Place of Redress: African Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal.

By David E. Bernstein. Constitutional Conflicts. (Durham, N.C.: Duke University Press, 2001. Pp. [xiv], 191. $39.95, ISBN 0-8223-2583-7.)

"As we enter the twenty-first century," David E. Bernstein intones, "worldwide appreciation for the benefits of voluntary, peaceable market transactions is reaching a historical apex" (p. 117). Inspired by a series of lectures at the Cato Institute, Only One Place of Redress seeks to sanctify this shibboleth by invoking elements of African American legal and labor history. Bernstein's thesis can be stated briefly: any sort of labor regulation harmed African American prospects. For a fleeting moment, the U.S. Supreme Court upheld liberty-of-contract doctrine, what Bernstein labels "Lochnerism" (p. 2), both before and after the celebrated 1905 New York case striking down legislation that limited bakers' hours. Under Lochnerian jurisprudence, "African Americans benefited greatly from ... decisions preserving free labor markets"; sadly though, the courts eventually acquiesced to misguided statist regulation, "much to the detriment of African American workers" (p. 7).

Along the way, Bernstein mushes together a wide variety of labor laws, including emigrant agent statutes, professional licensing, laws granting exclusive union bargaining rights, and finally New Deal labor legislation. Even such seemingly progressive provisions as the minimum wage and collective bargaining "contributed to a significant, persistent increase in African American unemployment, and therefore contributed to the development of the urban `underclass'" (p. 105).

Throughout the book, racist white unionists, along with jurists and legislators who fail to see the light of Lochner, provide the villains. Bernstein repeatedly relies on white workers' racism to explain the origins of labor laws, but he only briefly seeks to explain it, ignoring most of the insights of recent "whiteness" studies. Progressives and other "interventionists" appear as merely ignorant, lacking the truth supplied by neoclassical economics. Other than planters, the power of corporations and employers goes unaddressed. At one point, Bernstein actually blames employer racism on workers, citing with approval the view that, to avoid costly conflict, "rational employers ... segregate workers" who (apparently naturally) bring their ethnic ideologies to the shop floor (p. 97).

To be sure, Bernstein correctly finds much of labor law racially motivated, and he properly notes that even progressive regulations have not always aided black workers. This notion is undeniable with regard to laws restricting mobility, for example, but it is quite hard to swallow the idea that injunctions preventing strikes were "a blessing for African Americans" (p. 53). In a broader sense, Bernstein misses the point, now well established by numerous legal and labor historians, that the labor market itself is a legal invention and cannot really be "free."

A brief review does not offer the space to unpack all of Bernstein's faulty assumptions, unsubstantiated assertions, and ideological axes to grind. Suffice to say that while he might be correct about the unintended economic consequences of labor regulation, he has a long way to go to prove the case.

JAMES D. SCHMIDT
Northern Illinois University