Abstract

Excerpted from: Pamela A. Izvănariu, 30 Georgetown Journal on Poverty Law and Policy 371 (Spring 2023) (444 Footnotes) (Full Document)

The deeply entrenched and rising economic, political, and racial inequality and the steadily expanding economic and political power of large corporations we face today has prompted many scholars to conclude that our democracy is in crisis. These scholars have called for a dramatic transformation of our political economy through a broader and more just dispersal of power. With scholars in search of both inspiration and solutions, there has been a renewed interest in the New Deal. The New Deal—the nation’s most significant historical example of how the American legal system can transform our political economy and combat the lawless capitalism, corporate rule, and economic and political inequality that threaten constitutional democracy —brought us the federal minimum wage, maximum hour, and collective bargaining; Social Security and unemployment insurance; and the Banking Act and the FDIC. For some, the renewed interest in and emphasis on the New Deal and federal intervention is misguided in view of the historical and present-day impacts of the New Deal on Black people. With this understanding, it is impossible to avoid the fact that New Deal statutes and programs were formed in the shadow of Jim Crow; colorblindness was wielded in their development and interpretation as a weapon to extend white supremacy and legitimize systemic and institutionalized racism.

The shadow of Jim Crow looms large over the history of worker protection laws in the United States. Scholars have documented how race discrimination was embedded in New Deal labor and employment law beginning with the National Industrial Recovery Act (NIRA). Southern industrialists advocated for the wholesale exclusion of Black workers from coverage under the NIRA, as well as reduced minimum wage rates and increased maximum hour limitations for Black workers. While explicitly segregated wage rates were not adopted, scholars have shown that the exclusions and differentials sought by southern industrialists were ultimately delivered through the use of proxies for race. This race discrimination was later embedded in the Fair Labor Standards Act (FLSA) and National Labor Relations Act (NLRA). Recent literature details how the racist origins of our tiered system of worker protection continue to impact farmworkers, domestic workers, day laborers, tipped workers, and ride-hail and delivery platform drivers today.

Much of this scholarship builds on arguments originally articulated and advanced by John P. Davis. Davis is recognized as a preeminent civil rights activist of his time, a leading critic of the National Recovery Administration (NRA), and the first person to identify the race discrimination being written into federal law through the minimum wage and maximum hour provisions of the NRA codes of fair competition. Yet, the literature reveals little about the work and role of Davis and his organizations—the Negro Industrial League (NIL) and the Joint Committee on National Recovery (JCNR)—in the contest over racial wages. This Article aims to begin to fill this gap.

Accordingly, this Article makes several interventions into our understanding of the crucial moment in United States legal history that the New Deal brought forth. First, it uses archival research to provide a more complete picture of the early New Deal contest over racial wages, analyzing the battles between southern industrialists, Davis and his organizations, and the NRA in relation to the contest over racial wages. Second, it examines the modes of engagement and arguments employed by Davis and his organizations, recovering Davis’ approach to challenging discrimination along with his alternative vision of New Deal reform. In doing so, it provides a critical resource and source of inspiration for scholars, practitioners, and activists working to understand and address the problems of oligarchy and inequality that threaten our democracy today. Third, the Article adds to current debates concerning the role of the New Deal in deepening segregation, retrieving Davis’ claims against the NRA and presenting previously unexplored archival evidence of the NRA’s purposeful discrimination. Finally, the Article demonstrates that even as Davis criticized the New Deal for sanctioning racism, he championed its promise, emphasizing the constitutional necessity of government intervention to combat the oligarchy and racial inequality that eroded our potential to guarantee complete equality of citizenship and “accomplish the promise which our heritage of democracy so brilliantly offers.”

I begin Part II of this Article by introducing the NIRA and the NRA, detailing how the passage of the NIRA prompted southern industrialists to mobilize against Black labor and liberation and advocate for racial wages. Then, in Part III, I discuss John P. Davis’ initial intervention in the NRA code-making process, before explaining the formation of the NIL and JCNR. In Part IV, I show how southern industrialists used framing devices, scientific racism, and terrorization as tactics to secure racial wages and suppress the mobilization of Black labor. Moving on, in Part V, I present Davis’ approach to proving and challenging discrimination and his alternative vision for major, structural change. In Part VI, I present and analyze a completely neglected archival source as evidence of the NRA’s purposeful discrimination. Then, in Part VII, I briefly explain how the race discrimination embedded in the NRA codes was ultimately incorporated into the FLSA and NLRA before discussing how both Davis and southern industrialists responded to the legislation.

[. . .]

Recovering the work of Davis, the NIL, and the JCNR underscores how wage and hour, collective bargaining laws, and other federal programs and legislation were constructed, interpreted, and adapted to create and maintain white supremacy. Using empirical, analytical, and investigative research alongside legal and policy arguments, Davis established that despite its facial neutrality, the law was not neutral, objective, or apolitical. The Special Industrial Recovery Board transcripts, discussed above, substantiate Davis’ original claims, providing direct evidence that the NRA intentionally designed the codes of fair competition to deprive Black workers of equal benefits and protections under the NIRA and considered race during decision-making processes as a basis for its action. The transcripts evince that the NRA engaged in the productive formulation of race neutrality to conceal its discriminatory intent.

As we face a growing resistance to the acknowledgement of how racial subordination is constructed, legitimated, and maintained by the American legal system, Davis’ work serves as a reminder that slavery and racism have shaped and continue to shape the law, including the fundamental framework of our worker protection system. This recovery project also reminds us that we must confront, preserve, and further examine this history to guarantee it is not lost and make sure we understand it.

That the recovery of Davis’ work provides important historical context for problems we face today can be readily borne out through connections he, himself, could have scarcely imagined. Indeed, my own interest in Davis first developed because of the way I found it shedding light on seemingly unrelated areas of my own work concerning the problem of worker misclassification within the gig economy by companies like Uber and Lyft. As I have demonstrated in such past work with my colleague Federico Rosenbaum Carli, platform economy companies argue for a third category worker classification that effectively delivers subminimum wage rates, in the process claiming they want to “save” and “protect” “App-Based Jobs,” and offering themselves up, Veena Dubal has noted, as fonts of racial benevolence. In so doing, the major players in the gig economy have insisted that the law discriminates against them while engaging in a particularly intensive brand of anti-union politics.

As “new” as the companies of the “new” economy may be, therefore, their actions and claims clearly harbor a deep continuity with earlier efforts of Davis’ southern industrialist adversaries, as they sought to secure a tiered worker protection system that would also preserve white supremacy. Accordingly, it is hardly a stretch to see recovering Davis’ work as a means of helping to bring into view the similarities in the strategies and tactics employers have used to secure their continued access to a cheap, exploitable, pool of largely racial minority and immigrant labor. For at base, Davis’ career teaches that excluding certain classes of workers from wage and hour and collective bargaining protections and crafting a tiered system of worker protection was bound to lead to rampant misclassification, emasculated unions, and competitive exploitation amidst the drive for profit-seeking. So long as major, structural reform failed to account for the racialized political economy, it would reproduce the inequality inherent in the system. In no insignificant way, then, can one see Davis’ warnings to still now be coming to fruition in the course of constituting our present, amidst the persistence of racial and ethnic inequalities, multibillion dollar corporations enjoying soaring profits in a time of persistent inflation, and concerted efforts to intimidate workers from organizing and, ultimately, bust unions. Even if for no other reason, then, the contours of our present should provide ample reason to take Davis seriously.

The same proves just as true if we move from diagnosing our present predicament to prescribing ways out of it. Here as well Davis’ original contentions, recommendations, and approach provide a critical resource and source of inspiration. By way of conclusion, it is thus apt to note that a Davis-informed approach to combatting inequality and the cementing of a constitutional order of oligarchy in our own world would require at least three priorities. First, it demands that we undertake an honest reckoning with the ways that racism, race discrimination, and white supremacy continue to shape the development and implementation of law. This would necessitate an accounting of resultant harms and reparative action to address them. This is why, on admittedly the smallest of scales, this Article has identified a unique and practical opportunity for the Department of Labor (DOL) to make good on this priority. In this respect, it would need do little more than acknowledge the September 18, 1933, Special Industrial Recovery Board meeting transcript marked “missing” from the DOL records that Davis had long ago used to expose race discrimination at the highest levels of the NRA. Doing so would naturally lend itself, in turn, to undertaking relevant steps to produce a more complete record of the Recovery Board transcripts.

Secondly, a Davis-informed approach to addressing inequality and the slide into a constitutional culture of effective oligarchy would require federal intervention, including the passage and enforcement of legislation to guarantee freedom, liberation, and material equity in a way that could not but help upend white supremacy. As such, it entails a call for an alternative New Deal not unlike the one Davis backed. At a minimum, such intervention would aim to facilitate a wide-ranging political-economic redistribution to ensure a more just and equitable arrangement of decision-making power, access to resources, and, dare one say, material outcomes. It would also aim to facilitate the passage and enforcement of laws guaranteeing a baseline freedom from domination and improper exclusion. This, more specifically, could take shape through legislation to guarantee workers a living wage; safeguard against worker misclassification; protect the right of all workers to join together and negotiate collectively in the workplace; and secure accountability for the powerful, including through providing for criminal sanctions against lawbreaking corporate employers.

Last but not least, a Davis-informed approach to addressing inequality and oligarchy would foreground the mass mobilization and movement building aspects of his work that are so vitally needed to effect structural and cultural change. Davis himself recognized that effecting transformative change required more than federal intervention and new legislation; indeed, this is partly why he went on to build the most militant interracial freedom movement since emancipation. Just as Frederick Douglass had called for the mobilization of an interracial coalition “to dismantl[e]. . .the Southern slave-based oligarchy,” Davis called for a Black-led, interracial, antiracist, labor-focused freedom movement; and a much larger movement organization network. Using the JCNR as a foundation, Davis mobilized the National Negro Congress (NNC), a much larger movement organization network that worked to “emancipate blacks [and] also liberate working class whites from the economic system of oppression that Jim Crow had sustained for the past half century.”

Serving as the NNC’s executive secretary, Davis thus pushed forward a wide-scale organizing campaign, successfully motivating leaders from the Congress of Industrial Organizations (CIO) to work with the NNC to bring Black workers into the union4 and connecting the CIO with its first dozen Black steelworker organizers, who were drawn from the NNC’s own base. Indeed, it was Davis who spearheaded the NNC’s union drive, including through serving as a tireless voice at union rallies for domestic workers, garment workers, hotel workers, autoworkers, longshoremen, meatpackers, and tobacco pickers.

At the same time, here it is important to remember that the work of Davis and his NNC colleagues was not limited to labor issues. They also called for the abolition of peonage, police brutality, lynching, and other forms of racialized violence, and this in the name of “demand[ing] and attempt[ing] to enact a ‘second emancipation.’”

Truth be told, a Davis-informed approach to addressing inequality and constitutional oligarchy cannot help but look a lot like the transformative visions that worker and racial justice advocates have been working under such difficult conditions to implement today. Davis’ demands thus clearly echo on in the policy platform of the Movement for Black Lives, the Black Domestic Workers Agenda and Domestic Worker Bill of Rights of the National Domestic Workers Alliance; the National Black Worker Centers’ proposal for a Black Worker Bill of Rights; and the kinds of calls made by organizations like One Fair Wage. A complete wage includes a living wage, non-wage benefits (like paid sick and vacation leave, retirement benefits, healthcare, and childcare), racial and gender equity, fair scheduling, and a harassment-free workplace environment.  If the demands Davis was making in 1933 are strikingly similar – in fact, nearly identical – to those worker and racial justice movements are making in 2023, it is worth noting, in closing, that the best explanation is likely the most obvious. This is because the problems Davis identified and the demands he made to address them —now, some 90 years ago—are ones that have persisted down to the present day.

Bio: Pamela A. Izvănariu is currently an Assistant Professor of Law and Sociology at University of Dayton School of Law. She previously served as the Director of Florida International University’s Research Institute on Social and Economic Policy and the Research and Development Director of the Institute for Research on Labor and Employment at the University of California, Los Angeles.