by Paul Frymer. Princeton: Princeton University Press, 2007. 224pp. Cloth. $50.00/£35.00. ISBN: 9780691130811. Paper $24.95/£17.95. ISBN: 9780691134659.
Reviewed by Michelle D. Deardorff, Department of Political Science, Jackson State University. Email: michelle.d.deardorff [at] jsums.edu.
Paul Frymer’s excellent book on the consequences of seventy years of isolating racial discrimination from labor law is part of the “Princeton Studies in American Politics: Historical, International, and Comparative Perspectives,” edited by Ira Katznelson, Martin Shefter, and Theda Skocpol. The logic of its inclusion in this series is found in Frymer’s explicit attempts to integrate the schools of New Institutionalism and American Political Development, as well as the theory of intersectionality, within his research. Frymer has an immense agenda for this book; while he is able to address all of his stated themes, it leaves the reader wanting a greater development on each aspect. He explicitly recognizes that a portion of his findings provide new insight into the development of civil rights law and the diminishment of the labor movement, and he also engages in a significant degree of theory-building in the second part of the book. He not only encourages the reader to reconsider the lessons of state-building during the New Deal and our understanding of the changing role of the federal courts in policy making, but he seeks to have political scientists confront the limitations of how we currently study these institutions.
While some excellent research has been conducted exploring the history of African Americans in the labor movement and during the New Deal (Kelley 1990; Sullivan 1996), within political science this has resulted in the following historical narrative: legislative change, followed by a strategy of litigation, resulting in union desegregation. Frymer makes a compelling case that when we deliberately set about to integrate race and class within the civil rights and labor narratives, we find that they are not sequential, but intertwined. He asserts that the institutions created to help democratize class – the Wagner Act of 1935 and the National Labor Relations Board (NLRB) – and race – Title VII of the Civil Rights Act of 1964, Equal Employment Opportunity Commission (EEOC), and the Federal Employment Practice Committee (FEPC) – did not work coherently to prevent racial discrimination in unions while simultaneously advancing the workers’ power. Instead they were striving at cross-purposes and cross-agendas. As a consequence, the role of the federal courts in enforcing civil rights legislation is much larger and significant than previously understood; its result, according to Frymer, was the gutting of the labor movement and the subsequent decline of the Democratic party. This is an intriguing argument and one that substantially bolsters the contention that racism in America is institutional, [*193] despite the continued emphasis on personal attitudes. In the introductory chapter, Frymer seems to imply these choices were the result of arrogance and poor judgment on the part of civil rights organizations and the judiciary. As his narrative unfolds, however, it becomes evident that he believes that the legislation establishing these institutions, the internal cultures of the NLRB and EEOC, as well as the subsequent choices made by Congress, rendered a strong judicial role inevitable.
In Chapter Two, “The Dual Development of National Labor Policy,” Frymer demonstrates that national labor policy was of a “profoundly bifurcated nature” (p.23), in which labor relations law was divorced from civil rights law. Labor law – formed under the initial authority of the Wagner Act – allowed the NLRB to challenge discriminatory actions against workers only based on their union organizing activities, not actions founded on such protected status as race or gender. Frymer notes that, because civil rights was not a fundamental tenet (or even tertiary one) of the New Deal, when we incorporate race to our history of the Wagner Act and the New Deal, we are led to not simply a more complicated interpretation of the New Deal and its legacies, but a completely revised understanding. Because the NLRB consistently refused to challenge unions on issues of racial discrimination, for several decades civil rights organizations tried to challenge NLRB policy through the legislature to no avail. In addition, there was continuous and unresolved debate within the executive branch over where the civil rights oversight of union activities should be institutionally placed. Frymer argues that the logical consequence of this confusion is that one of the largest democratizing movements in United States history emerged from the judiciary.
In Chapter Three, “The NAACP Confronts Racism in the Labor Movement,” Frymer contends that NLRB avoidance of racial discrimination in the local unions and the Department of Labor’s and the EEOC’s basic obliviousness toward union culture resulted in civil rights groups relying on litigation to desegregate unions. According to BLACK AND BLUE, the subsequent court decisions had a clear unintended effect of undermining unions, but also resulted in racial integration and increased African American representation (he addresses early in the first chapter his narrow focus on the African American experience). Although unions were the most engaged of all non-civil rights organizations in supporting civil rights activities, the local chapters of unions were often in the forefront of resistance to desegregation and integration. In addition, like many leftist structures in the early to mid-twentieth century, union officials saw racism as secondary to economic equality. The NAACP, similarly structured with a national organization creating policies to guide relatively autonomous local chapters, struggled with its own stance toward organized labor. Conflict between the two intensified as union leaders began to believe that civil rights lawyers were so focused on integrating unions that they would do it at the cost of unions’ potential destruction, especially since local African American union members were forming radical movements designed to address economic [*194] restructuring, rather than integration. Frymer argues that the existing bureaucratic and statutory structure “was ill-suited to respond to this situation. Thus as the civil rights movement confronted workplace inequality and the federal government reacted tepidly, the continuing resistance of unions to civil rights reforms eventually led to the activism of courts and lawyers. In doing so, the American state – dominated by regulatory agencies directly accountable to elected officials – was again revised (if not replaced) by politics though courts” (p.69).
The fourth chapter, “The Legal State,” examines both the structural changes to the courts and the litigation activities of civil rights organizations, which merged to construct a new institutional relationship between the judicial and legislative branches. Frymer is particularly observant of the literature that examines the constraints on legislators preventing the enactment of radical new social policies, noting that a consequence may be that legislators are willing to hand decision making off to the judiciary. Throughout this chapter, Frymer reiterates the need for American Political Development-oriented scholars to explore the judiciary (particularly state and lower federal courts) through the same institutional framework currently reserved for executive and legislative branches:
Because scholars do not see the courts as institutional actors, they identify the courts’ influence – narrowly conceived through jurisprudence – as merely one of veto. Courts, in this view, are an obstacle to the development of a regulatory state which is itself controlled by elected officials. Court power is thus juxtaposed to democratically controlled state power: elected officials try to promote state development, and courts try to stop it . . . .
But we begin to see how the legal system has become one of the most powerful agents of state power when we explore the expansion of the law as an institution, not just in terms of Court decision but in terms of the increased scope of the legal profession, the expansion of legal rules and procedures in the litigation process, and the additional weapons given to lawyers and judges to wield influence (pp.74-75).
While we may quibble with his broad characterization of the literature on judicial development, he does an excellent job demonstrating how changes in the policies and procedures regulating the courts, the evolution of the legal profession, and the political context in which they were operating merged to force labor unions to integrate. For Frymer, it was these “non-ideological and purely institutional factors” and not a policy decision by the NAACP that led to the choice of litigation as the primary strategy directed toward desegregation. Once litigation and the use of damages for past discrimination was accepted by the judiciary as a legitimate tool to address racial discrimination, unions had no choice but to respond or “bleed to death” through the payment these extensive economic costs (p.91). Judges created new tools, with legislative support, in order to demand compliance from the unions (and other institutions), including: establishing special masters, requiring payment for damages, granting attorney fees, and providing back pay. “The Constitution may provide elective officials with institutional weapons that it denies to courts, but with these weapons came significant institutional [*195] constraints on the ability of elected officials to be active policy makers, particularly on civil rights. No political branch, then, is either “hollow” or perfect, as each provides activists different opportunities and constraints that vary with historical and political context” (p.94). Intriguingly, the lesson Frymer draws from these observations is that, while the courts may be best suited to make policy under certain conditions, no branch of government is equipped to address intersectional issues of conflict – such as race and class.
The penultimate chapter, “Labor Law and Institutional Racism,” focuses on the limitations of our current understanding of racism as individualized behavior merely reflected by the law. Instead, BLACK AND BLUE challenges our current understanding of the relationship between institutions and racism. Frymer promotes a new “institutional understanding of individualized racism” (p.103), which has four key components: 1) through incentives and influences institutions can actively promote racist actions; 2) institutions empower actors, allowing them to shape agendas and influence the behavior of others; 3) institutions can influence the degree of freedom racist actors have for self-expression; 4) individual expressions of racism have different degrees of significance based on their institutional context. Frymer concludes that if racial acts are located within institutional conflict, societal racism is “not intractable but malleable and politically determined” (p.106). He tests this assertion through an examination of the NLRB published cases from 1935-2000, compared with decisions rendered in the federal courts, concluding that “[t]he Board sees racist acts as engrained in and a product of institutions and focuses on the actors responsible for prompting the racist act. By contrast, courts, in viewing racist acts as the irrational animus of racist individuals for behavior beyond the bounds of acceptable politics” (p.107). The institutional approach to racism demonstrated by the NLRB is offered as a competing theoretical model to the more traditional personal behavior approach generally adopted by social scientists.
Finally, in the chapter entitled “Law and Democracy,” Frymer turns to the questions of how this alternative interpretation of the empowerment of post-New Deal federal courts should influence judicial scholarship. Most importantly, he challenges – in a different fashion than the usual rejoinder – Alexander Bickel’s “countermajoritarian” critique. While he traces the recently revised perspective of many progressive legal scholars as to the appropriate role of the courts in policy making, Frymer argues that an institutional perspective recognizes that both the legislature and the courts inevitably have policy-making functions in a democratic society. BLACK AND BLUE is a powerful demonstration of how a different theoretical paradigm can result in new interpretations of not only historical events, but current understandings of both racism and judicial legitimacy. Although there are many unanswered questions resulting from this intriguing book, it offers some fruitful new directions for the burgeoning scholarship in intersectionality, as well as continuing in the traditions of American Political Development and New Institutionalism. [*196]
Bickel, Alexander M. 1962. THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS. New Haven: Yale University Press.
Kelley, Robin D.G. 1990. HAMMER AND HOE: ALABAMA COMMUNISTS DURING THE GREAT DEPRESSION. Chapel Hill: University of North Carolina Press.
Sullivan, Patricia. 1996. DAYS OF HOPE: RACE AND DEMOCRACY IN THE NEW DEAL ERA. Chapel Hill: University of North Carolina.
© Copyright 2009 by the author, Michelle D. Deardorff.