Author(s): | Novkov, Julie |
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Reviewer(s): | Bernstein, David |
Published by EH.NET (June 2000)
Julie Novkov, Constituting Workers, Protecting Women: Gender, Law, and Labor
in the Progressive Era and New Deal Years. Ann Arbor: University of
Michigan Press, 2001. xii + 320 pp. $44.50 (cloth), ISBN: 0-472-11198-1.
Reviewed for EH.NET by David Bernstein, George Mason University School of Law.
Constituting Workers, Protecting Women is an interesting look at the
so-called Lochner era of American constitutional jurisprudence through
the lens of the struggle over the constitutionality of so-called “protective”1
labor legislation, such as maximum hours and minimum wage laws. Many of these
laws applied only to women, and Novkov argues that the debate over the
constitutionality of protective laws for women — which some women’s rights
advocates saw as discriminatory legislation against women — ultimately had
profound implications for the constitutionality of protective labor legislation
more generally.
Liberally defined, the Lochner era — the era during which American
courts were most likely to declare regulatory legislation unconstitutional,
generally as violating of liberty of contract and due process under the
recently-passed Fourteenth Amendment — lasted from the Slaughterhouse
Cases in 1873, in which four of the nine Supreme Court Justices advocated
strong constitutional protection for occupational liberty, through the triumph
of the New Deal in the late 1930s. Novkov divides the Lochner era into
four distinct periods. First, 1873-1897, was the “era of generalized
balancing,” in which “the tension between liberty and police power emerged as
the central focus of claims grounded in due process.” While a few state court
decisions overturned occupational regulations during this period, these
decisions were clearly the exception to a norm that permitted legislatures to
interfere with the employment relationship. This norm survived in part because
legislatures were disinclined to engage in much more than minor tinkering with
the prevailing laissez-faire bent of labor law.
Next, came the “era of specific balancing,” from 1898-1910, which saw a
significant increase in legislative initiative regarding labor relations.
Courts began to focus on the types of labor legislatures sought to regulate,
distinguishing between the prototypical male laborer in an “ordinary”
occupation on the one hand, and classes of labor considered legitimately in
need of government assistance on the other. In cases such as Lochner v. New
York, 198 U.S. 45 (1905), the Supreme Court held that the states’ police
power did not encompass passing regulations that protected males working in
ordinary occupations. Ordinary occupations were those that posed no special
health risks to the workers themselves or to the public at large. However, the
Supreme Court and lower courts held that states could use their police power to
aid through legislation women, children, and men in especially unhealthful
occupations such as underground mining. For example, just seven years before
Lochner invalidated a maximum hours law for bakers, a profession deemed
ordinary, the Supreme Court upheld a maximum hours law for miners, Holden v.
Hardy, 169 U.S. 366 (1898). Just three years after Lochner, the
Court upheld a maximum hours law for women — Muller v. Oregon, 208 U.S.
16 (1908).
In the ensuing period of “labor-centered analysis” between 1911and 1923, courts
focused on “the justifications that could be used to show that protective labor
legislation for women was legitimate” (33). During this era, which coincided
with a spate of relatively Progressive appointments to the Court, the Supreme
Court was favorably inclined toward protective legislation, and almost
overturned Lochner itself. Only Justice Brandeis’ recusal in Bunting
v. Oregon, 243 U.S. 426 (1917), prevented this result, leaving the Court
deadlocked 4-4. Courts were content to uphold protective legislation for woman
based on stereotyped views of women’s role in society, supported by dubious
social science authored by Progressive reformers purporting to show that women
were incapable of competing in the workplace with men.
Finally, the period from 1923 through 1937 was an era of “gendered
rebalancing.” Discussion of protective labor legislation continued to center on
laws that applied to women only, especially minimum wage laws. The era began
with the Supreme Court overturning a minimum wage law for women on the grounds
that women have the same right to liberty of contract with men — Adkins v.
Children’s Hospital, 261 U.S. 525 (1923). It ended with the Court upholding
a similar law, accepting the Progressives’ argument that allowing workers with
unequal bargaining power to fend for themselves in contractual negotiations
cannot be considered liberty at all.
In preparing her book, Novkov apparently read every reported federal and state
case on protective labor legislation during the relevant time period. This is a
useful corrective to the all-too-common approach of many scholars of relying
solely on the most famous Supreme Court cases, as if they encompass the entire
range of constitutional decisionmaking. Having read and tabulated these cases,
Novkov finds that in each of the four eras she discusses, both federal and
state courts were more likely, often far more likely, to uphold women’s
protective legislation than general protective labor legislation.2 This is a
significant finding, but one that, as Novkov implicitly acknowledges, is not
especially remarkable. Even during the height of the Lochner era,
courts, and especially the United States Supreme Court, were generally
reluctant to strike down labor legislation under the Fourteenth Amendment’s due
process clause.
At least through the early 1920s, most decisions striking down labor laws
involved legislation that courts believed had no rational explanation beyond an
attempt to aid labor unions. For example, several decisions invalidated
legislation banning “yellow dog” contracts that prohibited workers from joining
unions. Legislation primarily benefiting labor unions was problematic on two
fronts. First, such legislation conflicted with libertarian “free labor”
ideology that arose out of the abolitionist movement and that permeated
post-Reconstruction America. Pro-union legislation also conflicted with courts’
more ancient hostility to “class legislation” that benefited an identifiable
group at the expense of the public at large. But while the Supreme Court
overturned legislation clearly benefiting labor unions, including the maximum
hours law involved in Lochner itself, it, along with lower courts,
upheld labor laws when a plausible argument was made that the law was
public-spirited.3 Reformers successfully argued that women’s lesser physical
strength, inability to bargain equally with men, and the need to protect
women’s role as mothers to the next generation, all argued against seeing
protective legislation as class legislation that illegitimately restricted
women’s liberty. (See, e.g., Muller v. Oregon, supra.)
Eventually, advocates of protective labor legislation for women were forced to
make a more radical argument. The Supreme Court declared in 1923 in Adkins
v. Children’s Hospital that henceforth it would not presume that women
could be restricted in their liberty of contract when men could not be.
Protective legislation would therefore be presumptively considered to be class
legislation. Defenders of protective legislation were therefore forced to
abandon their reliance on the argument that women were especially necessitous,
and instead argue that the courts misunderstood the true meaning of liberty of
contract. Liberty was not, they argued, the mere absence of state intervention
in contractual relations. Rather, liberty consisted of the ability of workers
to bargain on an equal footing with their employers, a circumstance that,
according to progressive reformers, required government intervention on behalf
of women workers. In the absence of such intervention, public aid to these
workers would be required, placing a burden on the government. This argument,
if accepted, would bring protective labor laws for women well within the
states’ police power.
Moreover, the obvious corollary to this argument was that male workers also
needed government assistance in order to exercise liberty, especially during
difficult economic times when workers were said to be willing “to accept any
wage to avoid starvation” (204). Minimum wage laws, rather than interfering
with liberty of contract, prevented unconscionable employers from relying on
the social safety net to subsidize their immoral wage policies. The Supreme
Court eventually adopted this argument in 1937 in West Coast Hotel v.
Parrish, 300 U.S. 379 (1937). As Novkov notes, “[t]he initial focus on
women as particularly vulnerable workers had enabled the logical extension of
the argument that the state could intervene in any relationship of employment”
once the legal system “acknowledged inequalities in bargaining power as
potentially burdensome for the state” (224). While Parrish specifically
endorsed a minimum wage law for women, its reasoning clearly signaled that the
Court believed that more general regulations of the labor market were also
within the government police power.
Novkov, however, exaggerates the historical importance of Parrish.
First, in focusing exclusively on protective labor legislation, she neglects to
recognize that by the New Deal era, Lochnerian jurisprudence had gone well
beyond its origins in labor cases and spread to a host of other areas. The
statism and civil liberties violations of World War I unleashed a reaction on
both the left and the right. On the left, it led to the formation of the
American Civil Liberties Union, and a focus on expanding protection for civil
liberties under the First Amendment. On the right it transformed
Lochner, which, as noted, had nearly been overruled in 1916, into a
broader, more vigorous doctrine attempting to police the boundaries of
appropriate government action. In the 1920s, the Supreme Court overturned laws
segregating private housing, banning German language instruction, closing
private schools, restricting entry into businesses, and regulating a host of
other economic activities. The Great Depression, combined with two Supreme
Court appointees by Progressive Republican Herbert Hoover, halted this
libertarian trend. The Lochner era effectively ended not in 1937 with
West Coast Hotel, but in 1934, when the Supreme Court upheld an obscene
New York law fixing an above-market price for milk at the height of the
Depression — Nebbia v. New York. With that case, the argument that the
limits of the police power were a significant constraint on economic regulation
effectively vanished. Novkov discusses Nebbia briefly in the course of a
literature review in the beginning of the book (9), but it never appears again.
In fairness, the Court did overturn a minimum wage law in 1936, but only on
stare decisis grounds — the defendant refused to argue that earlier
precedents declaring minimum wage laws unconstitutional should be overruled.
Regardless, Novkov argues that Parrish‘s reasoning permitted the Court
to uphold broader workplace legislation, such as the Fair Labor Standards Act
(FLSA). In fact, however, the reasoning of Parrish became almost
completely irrelevant well before the FLSA reached the Supreme Court in 1941.
In 1937, when Parrish was decided, the swing votes on the U.S. Supreme
Court still adhered to classical constitutional reasoning, which required
economic regulations to be justified as exercises of the government’s police
power. Within the next several years, however, the Court was taken over by a
wave of Roosevelt appointees, all of whom were chosen because they could be
relied upon to uphold both federal and state economic regulation under almost
any circumstance, and because they saw no implicit limitations on the
government’s regulatory authority. As early as 1938, the Court famously
announced its view that economic regulations did not impinge on fundamental
rights, and that only laws threatening civil liberties and civil rights would
receive anything more than the most limited scrutiny. Contrary to the
implications of Novkov’s thesis, this reviewer has no doubt that had the debate
over protective legislation for women never occurred, the Roosevelt Court would
still have upheld the FLSA and other New Deal labor legislation with no
hesitation.
Other problems with the book should be noted. Novkov clearly sympathizes with
Progressive reformers who challenged libertarian legal doctrines, and she is
certainly entitled to this perspective. However, her sympathies seem to distort
her analysis at times. For example, Novkov acknowledges that she approached her
research from a feminist perspective (276), and her book contains lengthy
discussions of internal debate among women’s rights advocates on the wisdom of
pursuing special protective laws for women. It’s odd, then, that Novkov
neglects to note that two of the strongest judicial pronouncements in favor of
equal rights for women before the modern feminist era came in cases in which
courts overturned protective labor laws.
First, in Ritchie v. People, 155 Ill. 98 (1895), the Illinois Supreme
Court discussed at length its view that the legislature may not arbitrarily
regulate the conditions of employment based on the sex of the workers involved.
The court concluded that “sex is no bar, under the constitution and law, to the
endowment of woman with the fundamental and inalienable rights of liberty and
property, which include the right to make her own contracts.” This is a rather
strong statement favoring legal equality for women, announced not too many
years after an era in which married women could not even own property. But
Novkov fails to quote the opinion, and instead states tepidly only the court
“denied that gender should make a difference in the outcome or reasoning of the
case” (61). Novkov thereby implies that the court’s opinion reflects a general
hardheartedness, while a more generous reading suggests that the author of the
opinion had a principled belief in women’s equality.
Even more striking is Novkov’s treatment of the United States Supreme Court’s
opinion in Adkins v. Children’s Hospital invalidating a minimum wage law
for women. Justice George Sutherland wrote for the Court:
the ancient inequality of the sexes, otherwise than physical . . . has
continued ‘with diminishing intensity.’ In view of the great — not to say
revolutionary — changes which have taken place since that utterance, in the
contractual, political, and civil status of women, culminating in the
Nineteenth Amendment, it is not unreasonable to say that these differences have
now come almost, if not quite, to the vanishing point. In this aspect of the
matter, while the physical differences must be recognized in appropriate cases,
and legislation fixing hours or conditions of work may properly take them into
account, we cannot accept the doctrine that women of mature age, sui juris,
require or may be subjected to restrictions upon their liberty of contract
which could not lawfully be imposed in the case of men under similar
circumstances. To do so would be to ignore all the implications to be drawn
from the present day trend of legislation, as well as that of common thought
and usage, by which woman is accorded emancipation from the old doctrine that
she must be given special protection or be subjected to special restraint in
her contractual and civil relationships. (Emphasis added.)
Justice Sutherland’s strong endorsement of women’s equality cannot be dismissed
as disingenuous. He was a longstanding advocate of women’s rights, including
the Equal Rights Amendment, dating back to his earlier tenure as a Republican
Senator from Utah. Yet rather than praise the Supreme Court’s endorsement of
women’s rights in Adkins, Novkov sees only a reactionary opinion
allowing women to be “subject to the same deprivations” as men (226).
The irony in Sutherland’s opinion, according to Novkov, is that because women
had gained the right to vote under the Nineteenth Amendment, “they could no
longer be protected by the legislative process.” But Novkov never stops to
ponder whether labor legislation was likely to have truly “protected” female
workers at a time when women were disfranchised and therefore had no say in the
political process. A public choice analysis would suggest that the odds that
legislation pertaining to women who could not vote would have had favorable
consequences to those women was slim indeed. Legislators had little if any
incentive to “protect” the non-voting single, often immigrant, women who
typically bore the brunt of the negative consequences of labor laws that
discriminated based on sex.
Indeed, Novkov, pays almost no attention to either political economy or
economics, much less to public choice specifically, even though there is no
inherent contradiction between feminist and economic analysis. Not
surprisingly, Novkov’s narrowed purview weakens her analysis. She thoroughly
recounts the role of Progressive public interest organizations such as the
National Consumers League in promoting protective legislation for women, and
the internal debates within the women’s equality movement (anachronistically
dubbed “feminism” by the author) over whether such legislation promoted women’s
equality. However, as Novkov mentions in passing, protective legislation was
also promoted by labor unions that excluded women to prevent women from
competing for jobs held or sought by union members.
The coalition between Progressive activists and self-interested labor unions is
an example of a classic “Baptists and Bootleggers” coalition,4 in which
do-gooders and special interests combine forces to endorse legislation (such as
Prohibition) that the “Baptists” believe to be morally worthy, and the
“Bootleggers” believe will benefit them economically. In the context of
protective labor legislation, the National Consumers League and its allies were
the Baptists, and the labor unions were the Bootleggers. The typical result of
Baptist/Bootlegger coalitions is that the specific interests of the
Bootleggers, with their lack of ideological naivete and direct economic
interest in the outcome of the legislation, tend to dominate the political
process, shaping the drafting and enforcement of the relevant legislation to
their liking. Novkov not only fails to tell the reader whether the interests of
the labor movement dominated the drafting and enforcement of protective
legislation for women, it apparently never occurred to her to ask the question.
Nor does Novkov ever seriously consider whether economic logic suggests that
maximum hours laws or minimum wage laws that apply only to female workers
actually aids them. Novkov acknowledges that some women’s rights advocates
argued that applying minimum wage laws to women only would benefit male
competitors who could work for less. But, despite the fact that her
bibliography contains a reference to a 1933 article by a classical liberal
feminist entitled “Wage Laws Result in Unemployment,” (288) Novkov never
considers an even more basic case against special minimum wage laws — that in
a free labor market, workers are paid a wage close to their marginal
productivity. Regardless of competition from men, employers faced with a
minimum wage law will necessarily dismiss their employees who are covered by
that law if the mandated wage exceeds marginal productivity.5 Rather than
address the economic consequence of “protective” legislation, Novkov seems
instead to uncritically accept the position of Progressive propagandists that
in the absence of wage legislation protecting necessitous workers, such workers
will accept any wage short of starvation, even when their productivity should
dictate a much higher wage. Yet if there is any evidence that workers, even
during the Great Depression, were getting paid significantly less than their
marginal productivity, Novkov fails to present it.6
Finally, the readability of this book, like many academic works, could have
been improved dramatically through better editing. Stylistically, the book too
often reads like a Ph.D. thesis, which it originally was. The author sometimes
digresses into discussions of literature that is at best marginal to her
thesis, and too often argues from authority (e.g., “Famous Professor So and So
has shown,”) rather than making a cogent argument and relegating the supporting
sources to endnotes. Needless academic jargon pops up here and there, most
annoyingly in the author’s consistent reference to “nodes of conflict,” a
phrase this reviewer found entirely superfluous. Perhaps most important,
needless repetition pervades the book. At least one-third of the 276 pages of
text could likely be eliminated with no harm done to substance, and with much
gain to readability.
Despite these flaws, Constituting Workers, Protecting Women is
recommended for readers interested in constitutional and women’s history. While
it does not deliver everything the author promises, or that this reviewer would
have liked to seen, it is a cogent account of an important legal/historical
controversy. The caveat for EH.Net members is that they are likely to be put
off by the book’s utter lack of an economic sensibility.
Notes: 1. While the advocates of such laws claimed that their purpose was to
protect workers, opponents of the laws believed them to be some combination of
unduly paternalistic, counterproductive, and mercenary.
2. Unfortunately, however, she neglects to provide an appendix listing the
cases she classifies as involving protective labor legislation.
3. The maximum hours law at issue in Lochner was intended to aid
unionized German bakers, who worked a standard sixty-hour week, at the expense
of more recent immigrant Italian and Jewish immigrant bakers, who were on call
for longer hours under a different system of production.
4. See, e.g., Bruce Yandle, “Bootleggers and Baptists in Retrospect,”
Regulation 22, no. 3 (1999).
5. The reader is told that “supporters of [women’s] equality largely
rejected the laissez-faire model of the labor marketplace” (198) (emphasis
added). This suggests that some advocates of equality supported laissez-faire,
but these libertarians are effectively written out of Novkov’s feminist
history, making no further appearance in the text.
6. Novkov also fails to discuss the empirical evidence regarding the effect of
sex-specific labor laws. Admittedly, this evidence is scanty, but Novkov does
not even cite, either in the text or her bibliography, economist Elizabeth
Landes’ well known article arguing that maximum hours laws for women created
unemployment, especially among immigrant women, “The Effect of State
Maximum-Hours Laws on the Employment of Women in 1920,” Journal of Political
Economy 88 (June 1980): 476-94. For criticism, see Claudia Goldin, “Maximum
Hours Legislation and Female Employment: A Reassessment,” Journal of
Political Economy 96 (February 1988): 189-205.
David E. Bernstein is an associate professor at the George Mason University
School of Law. He is author of Only One Place of Redress: African Americans,
Labor Regulations, and the Courts from Reconstruction to the New Deal (Duke
University Press, 2001).
Subject(s): | Social and Cultural History, including Race, Ethnicity and Gender |
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Geographic Area(s): | North America |
Time Period(s): | 20th Century: Pre WWII |