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

  • Julie Novkov

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.

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Copyright

References

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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.

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.

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

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

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

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”).

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

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.”

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

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

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.

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

13 Id.

14 Kreutzberg, 114 Wis. at 546.

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

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

17 Id. at 168.

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

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

20 Gillman, Constitution Besieged 9.

21 Id.

22 Id.

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.

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

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

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”).

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

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

29 Id. at 135.

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

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).

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

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).

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

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

36 Id. at 134.

37 Id. at 137.

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.

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

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

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

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

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

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”).

45 Id.

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

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).

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).

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

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”).

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

52 Id. at 530.

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

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

55 Lipschulz, 8 J. Women's Hist.

56 Id.

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.

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”).

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

60 Kessler-Harris, Out to Work 184.

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

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

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

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

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

66 Id. at 583–84.

67 Kessler-Harris, Out to Work 186.

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

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

70 Id. at 159.

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.

72 Id.

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.

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

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

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.

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

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

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.

80 Id. at 695.

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

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

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

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

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

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

87 Elerding, 254 III. at 584.

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

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

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

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

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

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

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”).

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.

96 Mink, Wages of Motherhood.

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

98 Id. at 137.

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

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

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

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”’).

103 Kessler-Harris, Out to Work 248.

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

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).

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”).

107 Okin, Women.

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

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

110 Allen, Uneasy Access.

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”).

112 Pateman, Disorder 127.

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

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”’).

115 Allen, Uneasy Access 3.

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

117 Id. at 195.

118 Id. at 196.

119 Id. at 205.

120 Id. at 207.

121 Id. at 218.

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

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

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”).

125 Gillman, Constitution Besieged.

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).

127 Skocpol, Protecting Soldiers and Mothers.

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).

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

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

131 Skocpol, Protecting Soldiers and Mothers 528.

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

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

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

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).

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

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

138 Id. at 346.

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

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