Have African Americans fared better under a scheme of freedom of contract or of government regulation of private employment relationships? Have court decisions striking down regulation of employment contracts on liberty of contract grounds aided black interests? Many contemporary observers, although with some notable dissenters, would respond that government regulation of freedom of contract, particularly the antidiscrimination provisions of Title VII of the Civil Rights Act of 1964, has benefited African Americans because it has restrained discriminatory conduct by private employers. Professor David E. Bernstein challenges the view that abrogation of freedom of contract has consistently benefited African Americans by examining government regulation of the workplace during the period from Reconstruction to the New Deal. Bernstein argues that "for most of the period after Reconstruction and before the modern civil rights era African Americans were better off with free labor markets than with federal regulation" (p. 105). Bernstein further argues that African Americans benefited from court decisions striking down some of these labor regulations. With this latter argument, Bernstein seems to bolster the much maligned "Lochnerian jurisprudence," pursuant to which many courts during the early twentieth century declared a variety of regulatory statutes unconstitutional on liberty of contract grounds. Noting that some scholars have argued that Lochner-era decisions benefited the powerful at the expense of the powerless (p. 4), Bernstein claims that those decisions striking down government regulation in freedom of contract frequently aided black interests. Bernstein has provided us with an important narrative that is underappreciated in African-American history. Historians of the declining status of African Americans during the late nineteenth and early twentieth centuries have tended to focus on the racial animus of private actors and government actions such as segregation laws, disfranchisement, and grossly underfunded black schools. Although some historians have previously noted the efforts of southern state legislatures to control black labor through vagrancy laws, convict leasing laws, emigrant agent laws, contract enforcement laws, and enticement laws, and the anti-black sentiment of many labor unions, Bernstein's book is a useful compilation of all the ways in which certain governmental actions adversely affected black employment opportunities during the Reconstruction to New Deal period.
Davison M. Douglas,
Contract Rights and Civil Rights,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol100/iss6/18