Legal Commentary

Excluding Unfit Workers: Social Control Versus Social Justice in the Age of Economic Reform

By David Bernstein

I?ve just posted this article, co-authored with Tim Leonard of the Princeton Economics department, on SSRN.  Here?s the abstract:

Contrary to their modern reputation as egalitarian liberals, many of the original progressive architects of American labor reform were partisans of human inequality. The labor legislation they pioneered was, in important respects, designed to exclude immigrants, women, and African Americans from some or all of the labor market.

The first part of this article discusses the origins and development of a progressive economic ideology that favored, indeed demanded, the exclusion of various so-called ?defective? groups from the American labor market. Xenophobia, race prejudice, and sexism certainly were not new to the United States in the Progressive Era. What was new was, first, the idea that protecting deserving workers required the social control of undeserving workers, enough so that labor-legislation advocates defended the exclusion of purportedly unfit minority workers not as an ostensibly necessary evil, but as a positive social benefit. Second, the exclusion of undesirables acquired a new scientific legitimacy: the Progressive Era marked not only the advent of the welfare state but also an extraordinary vogue for race thinking and for eugenics, the social control of human breeding. The new science of eugenics turned ?undesirables? into the ?hereditarily unfit? and elevated exclusion to a matter of national and racial health. And the new sciences of society, especially economics, showed how unfit workers wrongly lowered the wages and employment of racially superior groups.

The second part of this article discusses the practical impact progressive ideology had on labor reform in the 1930s. The intellectual heirs of progressivism used the prevailing economic crisis to promote previously unachievable government involvement in the labor market to the detriment of those deemed excludable.

The Davis-Bacon Act of 1931, which regulated the wages paid on construction projects paid for by the federal government, was designed to exclude African Americans and other workers deemed ?defective? from the labor market for federal construction projects.

The influence of the progressive economists? belief that low-paid African American workers were ?defectives? who should not be permitted to compete on price with white workers continued during the New Deal. Like jobs held by women and children, jobs held by African Americans were often considered ?substandard? by New Dealers and were slated for permanent elimination. This mentality was reflected in the Fair Labor Standards Act of 1938, which imposed a high uniform national minimum wage, even though its architects knew that this would lead to substantial unemployment among African Americans.

Finally, the 1930s witnessed the resurrection and expansion of single-sex, state minimum-wage laws in the 1930s. These laws were upheld by a Progressive Supreme Court in 1937. The Court adopted the conventional wisdom in contemporary liberal circles: women who could not command a ?living wage? as defined by statute should be expunged from the labor force.

In short, in the early 20th century American labor reformers promoted an ideology that advocated excluding from the workplace those they regarded undesirable, undeserving, or defective. Once progressive ideology came to dominate government policy during the Great Depression, labor legislation was enacted that intentionally set out to exclude ?undesirable? workers from the workplace.

Full post as published by The Volokh Conspiracy on January 11, 2010 (boomark / email).