David E. Bernstein

excerpted from: David E. Bernstein, The Law and Economics of Post-civil War Restrictions on Interstate Migration by African-Americans, 76 Texas Law Review 781-847, 781 (March, 1998) (406 Footnotes)

"A man has a right to go anywhere in this country he may choose." --R.A. "Peg Leg" Williams, Southern emigrant agent

In Williams v. Fears, the Supreme Court upheld a racist statute that imposed a prohibitive license fee on interstate labor recruiters known as "emigrant agents." The result in Williams negatively affected the lives of millions of African-Americans, yet, for reasons explained in detail in this Article, the case has been doomed to almost total obscurity.

From the end of the Civil War until Williams, emigrant agents played a key role in encouraging and financing African-American migration within the United States. Because many rural African-Americans "were too poor to go very far without aid and because they lacked ready access to information about opportunities in distant places," they had little choice but to rely on labor recruiters.

Emigrant agents lowered the information costs of migration by using their resources to advertise distant opportunities. Agents also often subsidized the economic costs of migration by either paying for or advancing the money for the migrants' train tickets. The agents sometimes even retired debts their recruits owed to plantation owners.

Emigrant agent laws greatly restricted such activity. By using taxation to essentially prohibit agents from engaging in their profession, these laws raised both the economic and information costs of migration. As intended, the added costs made it more difficult for rural African-Americans to migrate, particularly in large groups.

Group migrations were significant for several reasons. First, such migrations were sometimes a form of political protest, one of the few forms of protest in which disenfranchised African-Americans could engage. African-Americans frequently deserted regions in response to lynchings and other forms of white lawlessness, or in response to unfavorable legislation. African-Americans would move to places where they were relatively well treated or had relatively good economic prospects. Second, in the era before the welfare state, emigrant agents helped groups of destitute African-Americans flee areas devastated by flood, drought, or boll weevils and other pests. Finally, and perhaps most important, mass migration, and even the threat of such migration, was crucial to improving the treatment of African-Americans by white Southerners. In response to large-scale migrations, many farmers raised wages, improved the living and working conditions of African-Americans, and, with the cooperation of local and state government, granted African-Americans greater educational opportunities and greater protection in their property and person.

The body of this Article discusses Williams v. Fears in the context of the law and economics of emigrant agent laws, and the "usable history" that one can glean from the history of such laws. Part I discusses the development of free labor markets in the South after the Civil War, and reviews attempts by Southern whites to stifle such markets in order to maintain a docile, inexpensive supply of African-American labor. As economic theory would predict, white planters were unable to form a successful voluntary cartel to stifle the free labor market, so they turned to government coercion.

Part II discusses the origins of one example of government coercion, emigrant agent laws. Emigrant agent laws were generally a reaction to large-scale migrations of African-American workers in search of better social, economic, and political conditions. Part II also discusses early legal challenges to emigrant agent laws, some of which were surprisingly successful. Two Southern state supreme courts held that emigrant agent laws were unconstitutional.

Part III discusses the background to Williams v. Fears, and the decision in that case. R.A. "Peg Leg" Williams, the named party, was probably the most successful emigrant agent of his day. He assisted tens of thousands of African-Americans in pursuing new economic opportunities. Williams's arrest and conviction in Georgia for acting as an emigrant agent and the United States Supreme Court's subsequent ruling upholding the conviction led to a crackdown on emigrant agents throughout the South. As a result, the poorest and most isolated African-American workers found it particularly difficult to migrate and escape their miserable conditions.

Given the devastating effects of emigrant agent laws, and the high degree of interest in racial issues among legal scholars, it is astounding that Williams has been almost completely neglected by legal scholars. Part IV of this Article suggests that a major reason Williams has been ignored is that legal historians are generally indifferent, if not hostile, to economic reasoning. As explained in greater detail below, because legal historians have disregarded economic reasoning, they have virtually ignored subtle discriminatory economic regulations, of which emigrant agent laws are an important example.

As discussed in detail in Part IV, the slighting of economic reasoning by legal historians has impeded them from providing the broader legal community with a usable history. The neglect of emigrant agent laws, for example, has deprived legal scholars of information highly relevant to several current controversies in legal academia. First, the history of emigrant agent laws provides support for Richard Epstein's controversial thesis that state action played a far larger role in the economic oppression of African-Americans before the modern civil rights era than is generally acknowledged. Second, the history of constitutional litigation over emigrant agent laws shows that Lochnerian "laissez-faire" jurisprudence could and at times did protect minorities from hostile economic legislation. This history calls into question the standard view that Lochnerian jurisprudence primarily benefitted the wealthy and powerful at the expense of the poor. And, third, the history of African-American migration discussed in this Article calls into question the view commonly expressed in debates over federalism that the historical decentralization of political power in the United States was an unmitigated disaster for African-Americans. As discussed in Part IV, at a time when the federal government was generally hostile to African-American interests, decentralized government allowed African-Americans to better their lot by migrating to jurisdictions where relative economic opportunity or tolerance awaited.

[a1]. Assistant Professor, George Mason University School of Law. E-mail: dbernste@wpgate.gmu.edu.