Hostname: page-component-7c8c6479df-ph5wq Total loading time: 0 Render date: 2024-03-28T11:22:53.730Z Has data issue: false hasContentIssue false

Liberty, Protection, and Women's Work: Investigating the Boundaries between Public and Private

Published online by Cambridge University Press:  27 December 2018

Abstract

During the Progressive Era, the U. S. state and federal courts considered constitutional challenges to protective labor legislation. While courts often struck down generalized protective legislation, they frequently upheld such legislation for women. I explore the reasoning in the cases decided between 1897 and 1923, showing that the courts developed understandings of liberty for women that differed from those for men. In opposition to traditional separate spheres reasoning, I show that the courts viewed men's exercise of liberty as depending on their private capacities to be free, while women's labor was subject to public control due to state interest in their reproductive capacities. I suggest that constitutional theorists who are studying substantive due process should place more emphasis on courts'conceptions of the subjects of due process guarantees rather than considering solely the challenged statutes' restriction of liberty. I develop a dynamic and complex understanding of liberty to capture this aspect of the relationship between constitutional theory and gender.

Type
Articles
Copyright
Copyright © American Bar Foundation, 1996 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 169 U. S. 366 (1897). In this case, the Court upheld protective legislation for coal miners, stating that they constitute a class of workers in need of special protection due to the nature of their work.Google Scholar

2 262 U. S. 525 (1923). This case struck down a minimum wage law aimed specifically at women, and is sometimes understood by scholars to mark the height of the era of substantive due process.Google Scholar

3 I used electronic and digest sources, as well as tracking down cases cited in other cases or in briefs.Google Scholar

4 Lochner v. New York, 198 U. S. 45 (1905).Google Scholar

5 Dred Scott v. Sandford, 19 How. 393 (1857).Google Scholar

6 Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, N. C.: Duke University Press, 1993) (“Gillman, Constitution Besieged”); William Forbath, Law and the Shaping of the American Labor Movement (Cambridge: Harvard University Press, 1991) (“Forbath, Shaping the Labor Movement”).CrossRefGoogle Scholar

7 State v. Considine, 16 Wash. 358, 364 (1897).Google Scholar

8 In State v. Kreutzberg, 114 Wis. 530, 540 (1902), the court went on to strike down a statute protecting the rights of union members, claiming: “Without enlarging upon or debating the relative advantages or disadvantages of the labor union… it is axiomatic that an employer cannot have undivided fidelity, loyalty, and devotion to his interests from an employee who has given to an association right to control his conduct.”Google Scholar

9 Wright v. Hart, 182 N. Y. 330, 354 (Vann, J., dissenting) (1905).Google Scholar

10 In re Morgan, 26 Colo. 415, 420 (1899).Google Scholar

11 In Gillespie v. People, 188 Ill. 176, 183 (1900), the Illinois Supreme Court struck down a statute that would have stopped employers from preventing their employees from joining unions.Google Scholar

12 O'Brien v. People, 216 Ill. 354, 372 (1905).Google Scholar

14 Kreutzberg, 114 Wis. at 546.Google Scholar

15 Niagara Fire Ins. Co. v. Cornell, 110 F. 816, 822 (D. Neb. 1901).Google Scholar

16 Forbath, Shaping the Labor Movement 135 (cited in note 6).Google Scholar

17 Id. at 168.Google Scholar

18 Gillman, Constitution Besieged (cited in note 6).Google Scholar

19 Central Lumber Co. v. South Dakota, 225 U. S. 157, 160–61 (1912).Google Scholar

20 Gillman, Constitution Besieged 9.Google Scholar

23 Matter of the Application of Miller, 162 Cal. 686, 694 (1912). In this case, the California Supreme Court upheld a statute that limited women to eight-hour work days in hotels.Google Scholar

24 Booth v. State, 186 Ill. 43, 49 (1900).Google Scholar

25 Judith Baer, The Chains of Protection: The Judicial Response to Women's Labor Legislation (Westport, Conn.: Greenwood Press, 1978).Google Scholar

26 Eileen Boris, “The Regulation of Homework and the Devolution of the Postwar Labor Standards Regime: Beyond Dichotomy” (“Boris, 'Regulation of Homework”'), in C. Tomlins & A. King, eds., Labor Law in America (Baltimore: Johns Hopkins University Press, 1992) (“Tomlins & King, Labor Law”).Google Scholar

27 Erickson, Nancy, “Muller v. Oregon Reconsidered: The Origins of a Sex-based Doctrine of Liberty of Contract,” 30 Labor Hist. 228, 229 (1989).Google Scholar

28 People v. Williams, 189 N. Y. 131, 134 (1907).Google Scholar

29 Id. at 135.Google Scholar

30 People v. Charles Schweinler Press, 214 N. Y. 395 (1915).Google Scholar

31 In fact, some states barred recovery on the part of a husband for his wife's injuries on the ground that it was her economic capacity that was damaged, not his future rights to her income: “As the results of her earning capacity when exerted for herself belong to her, deprivation of that capacity must be to that extent her individual loss. The husband may recover for loss of services belonging to him, but not for loss of the wife's potentiality to earn for herself, nor for her expectation of life in that connection; and if he cannot, she can.” Texas & Pacific Ry. Co. v. Humble, 181 U. S. 57, 63–64 (1901).Google Scholar

32 Bradwell v. Illinois, 83 U. S. 130 (1872).Google Scholar

33 In referring to the charged proprietor, the court explained that “the restrictions of the ordinance were conditions of his license [to sell liquor], and by accepting the license he accepted the conditions, and no rights of his were infringed.” Cronin v. Adams, 192 U. S. 109 (1904).Google Scholar

34 Adkins, 262 U. S. 525 (cited in note 2).Google Scholar

35 People v. Williams, 189 N. Y. at 135–36.Google Scholar

36 Id. at 134.Google Scholar

37 Id. at 137.Google Scholar

38 After 1897 the Illinois Supreme Court considered two protective labor statutes for women, both of which were upheld; State v. Elerding, 254 Ill. 579 (1912) involved a ten-hour limit on hotel work; and People v. Chicago, 256 Ill. 558 (1912) limited women's work in public institutions to ten hours per day. In 1895, the Illinois Supreme Court had struck down an hours limitation for women in Ritchie v. People, 155 Ill. 98, but this ruling was overturned in the later Ritchie case (W. C. Ritchie & Co. v. Wayman, 244 Ill. 509, 518 (1910)). For an excellent discussion of how protective labor legislation came to be upheld in Illinois, see Erickson, 30 Labor Hist. 228.Google Scholar

39 W. C. Ritchie & Co. v. Wayman, 244 Ill. 509, 518 (1910).Google Scholar

40 People ex rel. Hoelderlin v. Kane, 139 N. Y. S. 350, 354 (Kings Co. Sup. Ct. 1913).Google Scholar

41 Fineman, Martha, “Implementing Equality: Ideology, Contradiction and Social Change,” 1983 Wis. L. Rev. 789.Google Scholar

42 Quong Wing v. Kirkendall, 223 U. S. 59, 63 (1912).Google Scholar

43 Erickson, 30 Labor Hist. at 230 (cited in note 27).Google Scholar

44 Ulla Wikander, Alice Kessler-Harris, & Jane Lewis, eds., Protecting Womenn: Labor Legislation in Europe, the United States, and Australia, 1880–1920 at 9 (Urbana: University of Illinois Press, 1995) (“Wikander et al., Protecting Women”).Google Scholar

46 Withey v. Bloem, 128 N. W. 913, 914–15 (Mich. 1910).Google Scholar

47 “We have thus quoted at length from the opinion of the learned justice [in Muller v. Oregon, 208 U. S. 416 (1908)] because we think his argument is convincing and unanswerable, and that it supports the validity of the statute now under consideration.” Washington v. Somerville, 67 Wash. 638, 646 (1912).Google Scholar

48 “Legislation limiting the hours during which women may be employed is in force in several of the states of the Union, and, so far as we are advised, such legislation has every where been upheld, except in the State of Illinois [sic].” State v. Muller, 48 Ore. 252, 255 (1906).Google Scholar

49 Lipschultz, Sybil, “Hours and Wages: The Gendering of Labor Standards in America,” 8 J. Women's Hist. 114, 117 (1996).Google Scholar

50 Gwendolyn Mink, The Wages of Motherhood: Inequality in the Welfare State, 1917–1942 (Ithaca, N. Y.: Cornell University Press, 1995) (“Mink, Wages of Motherhood”).Google Scholar

51 W. C. Ritchie & Co., 244 III. at 520–21 (cited in note 39).Google Scholar

52 Id. at 530.Google Scholar

53 Wenham v. Nebraska, 65 Neb. 394, 405 (1902).Google Scholar

54 W. C. Ritchie & Co., 244 III. at 523.Google Scholar

55 Lipschulz, 8 J. Women's Hist. Google Scholar

57 “On the question of the right to conract, we may well declare a law unconstitutional which interferes with or abridges the right of adult males to contract with each other in any of the business affairs or vocations of life. The employer and the laborer are practically on an equal footing, but these observations do not apply to women and children. Of the many vocations in this country, comparatively few are open to women. Their field of remunerative labor is restricted. Competition for places therein, is necessarily great. The desire for place, and in many instances the necessity of obtaining employment, would subject them to hardships and exactions which they would not otherhenvise endure. The employer who seeks to obtain the most hours of labor, for the least wages, has such an advantage over them that the wisdom of the law, for their protection, can not well be questioned.” Wenham v. Nebraska, 65 Neb. at 395.Google Scholar

58 Alice Kessler-Harris, Out to Work: A History of Wage-earning Women in the United States (New York: Oxford University Press, 1982) (“Kessler-Harris, Out to Work”).Google Scholar

59 Karen Orren, “Metaphysics and Reality in Labor Adjudication,” in Tomlins & King, Labor Law 173 (cited in note 26).Google Scholar

60 Kessler-Harris, Out to Work 184.Google Scholar

61 W. C. Ritchie & Co., 244 III. at 523 (cited in note 39).Google Scholar

62 With the exception of cannery workers, which I discuss below.Google Scholar

63 Wenham v. Nebraska, 65 Neb. at 405 (cited in note 53).Google Scholar

64 W. C. Ritchie & Co., 244 III. at 520.Google Scholar

65 State v. Elerding, 254 III. 579, 583 (1912).Google Scholar

66 Id. at 583–84.Google Scholar

67 Kessler-Harris, Out to Work 186.Google Scholar

68 Adams v. Cronin, 29 Colo. 488, 502 (1902).Google Scholar

69 In re Considine, 83 F. 157, 158 (D. Wash. 1897).CrossRefGoogle Scholar

70 Id. at 159.Google Scholar

71 “If a discrimination is made against women solely on account of their sex, it would not be good; but, if it is because of the immorality that would be likely to result if the regulation was not made, the regulation would be sustained.” Adams, 29 Colo. at 496.Google Scholar

73 “Women may therefore properly be excluded from wine rooms as this ordinance provides, and if they have no constitutional right to insist upon being admitted to places there to be supplied with liquor, when the effect would be demoralizing to society, a fortiori, the saloonkeeper may be prevented from furnishing them facilities for contributing to that result.”Id. at 497.Google Scholar

74 City of Hoboken v. Goodman, 68 N. J. 217, 221 (1902).Google Scholar

75 Mink, Wages of Motherhood 4–5 (cited in note 50).Google Scholar

76 Martha Fineman points out the risks of emphasizing women's victimization to promote equality through the establishment of the same rules for men and women, but her fears about the use of “woman as victim” are equally well met in the strategies of Progressive Erareformers who used these tactics. Fineman, M., “Implementing Equality: Ideology, Contradiction and Social Change,” 1983 Wis. L. Rev. 789.Google Scholar

77 State v. Buchanan, 29 Wash. 603, 606 (1902).Google Scholar

78 Wenham v. Nebraska, 65 Neb. at 405 (cited in note 53).Google Scholar

79 Matter of the Application of Miller, 162 Cal. 686, 697 (1912). This case involved an eight-hour per day limit on women's work in hotels.Google Scholar

80 Id. at 695.Google Scholar

81 People v. Williams, 189 N. Y. 131, 134 (1907).Google Scholar

82 Elerding, 254 Ill. at 583 (cited in note 38).Google Scholar

83 State v. Muller, 48 Ore. 252, 255 (1906).Google Scholar

84 Commonwealth v. Riley, 97 N. E. 367, 369 (Mass. 1912).CrossRefGoogle Scholar

85 W. C. Ritchie & Co., 244 Ill. at 520–21 (cited in note 38).Google Scholar

86 State v. Buchanan, 29 Wash. 603, 610 (1902).Google Scholar

87 Elerding, 254 III. at 584.Google Scholar

88 Mink, Wages of Motherhood 37, 109 (cited in note 50).Google Scholar

89 W. C. Ritchie & Co., 244 III. at 518–19.Google Scholar

90 Withey v. Bloem, 128 N. W. 913, 916 (Mich. 1910).Google Scholar

91 People ex rel. Hoelderlin v. Kane, 139 N. Y. S. 350, 357 (Kings Co. Sup. Ct. 1913).Google Scholar

92 W. C. Ritchie & Co., 244 III. at 521.Google Scholar

93 Boris, “Regulation of Homework” (cited in note 26).Google Scholar

94 Molly Ladd-Taylor, “Hull House Goes to Washington: Women and the Children's Bureau,” in N. Frankel & N. Dye, eds., Gender, Class, Race, and Reform in the Progressive Era (Lexington: University of Kentucky Press, 1991) (“Frankel & Dye, Gender, Class”).Google Scholar

95 Sharon Harley, “When Your Work Is Not Who You Are: The Development of a Working-Class Consciousness among Afro-American Women,”in Frankel & Dye, Gender, Class.Google Scholar

96 Mink, Wages of Motherhood.Google Scholar

97 Kessler-Harris, Out to Work (cited in note 58).Google Scholar

98 Id. at 137.Google Scholar

99 Mink, Wages of Motherhood 176 (cited in note 50).Google Scholar

100 Washington v. Somerville, 67 Wash. 638, 648 (1912).Google Scholar

101 Matter of the Application of Miller, 162 Cal. 686, 700 (1912).Google Scholar

102 Alice Kessler-Harris, “The Paradox of Motherhood: Night Work Restrictions in the United States,”in Wikander et al., Protecting Women 346 (cited in note 44) (“Kessler-Harris, ‘Paradox of Motherhood”’).Google Scholar

103 Kessler-Harris, Out to Work 248.Google Scholar

104 Kerber, Linda, “Separate Spheres, Female Worlds, Woman's Place: The Rhetoric of Women's History,” 75 J. Am. Hist. 9, 28 (1988).Google Scholar

105 Susan Moller Okin, Women in Western Political Thought (Princeton, N. J.: Princeton University Press, 1979) (“Okin, Women”); Jean Elshtain, Public Man, Private Woman: Women in Social and Political Thought (Princeton, N. J.: Princeton University Press, 1981).Google Scholar

106 MacKinnon, Catharine, “Sex Equality under Law,” 100 Yale L. J. 1281 (1990); Anira Allen, Uneasy Access: Privacy for Women in a Free Society (Totowa, N. J.: Rowman & Littlefield, 1988) (“Allen, Uneasy Access”).Google Scholar

107 Okin, Women.Google Scholar

108 Deborah Rhode, Justice and Gender: Sex Discrimination and the Law (Cambridge: Harvard University Press, 1989).Google Scholar

109 Olsen, Frances, “The Family and the Market: A Study of Ideology and Legal Reform,” 96 Harv. L. Rev. 1497 (1983).Google Scholar

110 Allen, Uneasy Access.Google Scholar

111 MacKinnon, 100 Yale L. J.; Carol Pateman, The Disorder of Women: Democracy, Feminism and Political Theory (Stanford, Cal.: Stanford University Press, 1989) (“Pateman, Disorder”).Google Scholar

112 Pateman, Disorder 127.Google Scholar

113 Nancy Dye, “Introduction,”in Frankel, & Dye, , Gender, Class 9 (cited in note 94).Google Scholar

114 Wendy Brown, “Reproductive Freedom and the Right to Privacy: A Paradox for Feminists,”in I. Diamond, ed., Families, Politics, and Public Policy: A Feminist Dialogue on Women and the State (New York: Longman, 1983) (“Brown, ‘Reproductive Freedom”’).Google Scholar

115 Allen, Uneasy Access 3.Google Scholar

116 Warren, Samuel & Brandeis, Louis, “The Right to Privacy,” 4 Harv. L. Rev. 193 (1890).Google Scholar

117 Id. at 195.Google Scholar

118 Id. at 196.Google Scholar

119 Id. at 205.Google Scholar

120 Id. at 207.Google Scholar

121 Id. at 218.Google Scholar

122 Allen, Uneasy Access 180 (cited in note 106).Google Scholar

123 Gillman, Constitution Besieged (cited in note 6).Google Scholar

124 Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge: Harvard University Press, Belknap Press, 1995) (“Skocpol, Protecting Soldiers and Mothers”).Google Scholar

125 Gillman, Constitution Besieged. Google Scholar

126 Eileen Boris, “Reconstructing the ‘Family’: Women, Progressive Reform, and the Problem of Social Control,”, in Frankel & Dye, Gender, Class 81 (cited in note 94).Google Scholar

127 Skocpol, Protecting Soldiers and Mothers.Google Scholar

128 Lea Vander Velde, “Hidden Dimensions in Labor Law History: Gender Variations on the Theme of Free Labor,”in Tomlins & King, Labor Law 118 (cited in note 26).Google Scholar

129 Brown, “Reproductive Freedom” (cited in note 114).Google Scholar

130 Pateman, Disorder 127 (cited in note 111).Google Scholar

131 Skocpol, Protecting Soldiers and Mothers 528.Google Scholar

132 Boris, “Regulation of Homework” at 262 (cited in note 26).Google Scholar

133 Wikander et al., Protecting Women 13 (cited in note 44).Google Scholar

134 Allen, Uneasy Access 63 (cited in note 106).Google Scholar

135 See, e. g., Michael H. v. Gerald D., 491 U. S. 110 (1989); Planned Parenthood of SE Pennsylvania v. Casey, 505 U. S. 833 (1992).Google Scholar

136 Sunstein, Cass, “Lochner's Legacy,” 87 Cal. L. Rev. 873 (1987).Google Scholar

137 Kessler-Harris, “Paradox of Motherhood” at 344 (cited in note 102).Google Scholar

138 Id. at 346.Google Scholar

139 West Coast Hotel v. Panish, 300 U. S. 379 (1937).Google Scholar