legal scholars and historians have written a great deal about blatant,
obvious examples of discriminatory state action against African Ameri-
cans, such as segregation laws. By contrast, the literature on more subtle
forms of discriminatory state action, such as facially neutral labor legisla-
tion that served to restrict African Americans’ access to the labor market,
is sparse.∞
Even facially neutral laws clearly intended to harm African
American workers, such as emigrant agent laws and the Davis-Bacon Act,
have received little attention from historians and legal scholars.
The neglect of the effects of facially neutral labor laws on African
American welfare has led historians and legal scholars to underestimate
the role of state action in the oppression of African Americans. The domi-
nant view in legal and historical circles is that the economic subjugation of
African Americans between Reconstruction and the modern civil rights
era primarily resulted from irrational private discrimination and social
custom in a free market environment.
Yet modern political economy, particularly public choice theory, sug-
gests that downplaying the role of state regulation, including facially neu-
tral regulations, in enforcing discriminatory norms is problematic. As
Mancur Olson’s classic work The Logic of Collective Action explains,
large, diffuse interest groups have trouble enforcing mutually desired
norms in the absence of coercion. In other words, it is very difficult for a
cartel, including a cartel of racist whites, to operate effectively unless the
government intervenes on its behalf.≤
Moreover, politicians often supply legislation to meet the demands of
important voter constituencies, rather than to serve the interest of the
public at large.≥
To put it another way, as noted in the Preface to this book,
legislation tends to benefit those with political power at the expense of
those who lack it. Because of disenfranchisement, African Americans
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