The Black Worker as Individualist? The Effects of ResourceCompetition on the Constitutional Strategies of the Civil Rights Movement During The Lochner Era

The Lochner Court has long been a favorite villain of constitutional scholars for its activist commitment to laissez-faire economic principles that thwarted progressive economic regulation by the state in the early twentieth century and kept unionized labor under its boot. Many constitutional scholars have also been quick to add racial menace to the list of transgressions by this Court, arguing that laissez-faire constitutionalism manifested an implicit racism and hostility to civil rights. In recent years, however, revisionist scholars have attempted to rehabilitate the Lochner Court, including among their claims the argument that black workers in this period, unlike their white counterparts, tended to support both the constitutional individualism of Lochnerian jurisprudence and the robust role of the courts themselves (see Bernstein; Kersch; and Moreno). My paper examines these claims that African-Americans at this time viewed conservative courts as their friends rather than their enemies through the lens of the activism of the leading organizations of the civil rights movement itself during this period - the NAACP and the Urban League (NUL). These two organizations faced tremendous challenges in winning rights for black workers, who were both spurned by white unions and exploited by white capitalists. Working together, these organizations strategically confronted the reality of their limited resources and worked hard to maximize them through outreach and coalition with both the labor movement and industrial leaders. Such large-scale efforts required compromises in both constitutional approach and narrative that reflected the relative strengths, weaknesses and biases of these two dominant civil rights organizations. My research is rooted in an approach to the study of constitutional development that recognizes that scarce resources and competitive forces within and between social movements and their constituent organizations will shape demands for constitutional rights. In other words, these actors look not only at precedent and the make-up of the courts and other constitutional elite to shape their demands, but also at each other, engaging in an explicitly political (in the general sense) process of claim formation. This horizontal channeling, as it were, of constitutional claims is often overlooked in the study of factors, such as judicial ideology, legal precedent, or institutional dynamics, which explain the shape and efficacy of constitutional narratives that drive our constitutional development and change. What emerges from my ground level study of the activities of these two organizations is a nuanced and contingent constitutional vision of labor on the part of the black worker, as well as strategically conditional support of activist courts on Capitol Hill, that belies both the traditional view of the Lochner Court as universally reviled enemy of labor, and the revisionist view of black workers as committed constitutional individualists. This subtlety of the strategically contingent constitutional demands of black workers is difficult to recognize using traditional approaches to the study of constitutional development that focus on elite constitutional actors.