Constituting Workers, Protecting Women: Gender, Law, and Labor in the Progressive Era and New Deal Years.

• Author: Bernstein, David E.
• Position: Book Review

CONSTITUTING WORKERS, PROTECTING WOMEN: GENDER, LAW, AND LABOR IN THE PROGRESSIVE ERA AND NEW DEAL YEARS. By Julie Novkov. Ann Arbor: University of Michigan Press. 2001. Pp. xii, 320. $44.50.

Professor Julie Novkov's Constituting Workers, Protecting Women (1) examines the so-called Lochner era of American constitutional jurisprudence through the lens of the struggle over the constitutionality of "protective" 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--laws that some women's rights advocates saw as discriminatory legislation against women--ultimately had important implications for the constitutionality of protective labor legislation more generally.

Liberally defined, the Lochner era (2) lasted from the Slaughter-House Cases in 1873--in which four Supreme Court Justices advocated strong constitutional protection for occupational liberty (3)--through the triumph of the New Deal in the late 1930s. In preparingher book, Novkov apparently unearthed and read every reported federal and state case on protective labor legislation during the relevant time period. (4) Having tabulated these cases, Novkov finds that both federal and state courts were much more likely to uphold women's protective legislation than to uphold general protective labor legislation. In fact, decisions affirming the constitutionality of women's protective legislation often paved the way for later sex-neutral legislation.

Novkov usefully divides the Lochner era into four distinct periods. As discussed below, Novkov's analysis of these periods is not fully persuasive. The four periods she delineates, however, do track major shifts in Supreme Court doctrine regarding the government's power to regulate labor (and to regulate the economy more generally), and will be used to frame this Review. Part I of this Review discusses Supreme Court jurisprudence regarding protective labor legislation from 1873-1897. Novkov refers to this period as 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" (p. 32).

Part II of this Review discusses what Novkov calls the "era of specific balancing," which lasted from 1898-1910. According to Novkov, this period saw a significant increase in legislation regulating labor contracts, including legislation that applied only to women workers (p. 33). Novkov asserts that 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 laborers considered legitimately in need of government assistance on the other. In 1908, in Muller v. Oregon, (5) the Supreme Court affirmed the constitutionality of maximum hours laws for women.

In the ensuing period of "laborer-centered analysis" between 1911 and 1923, discussed in Part III of this Review, courts focused on "the justifications that could be used to show that protective labor legislation for women was legitimate" (p. 33). During this era, the Supreme Court was inclined to uphold protective legislation. Advocates of protective laws for women gradually shifted their argument from women's natural disabilities to more general "laborer-centered" arguments that necessitous workers of any sex were not truly free. The constitutionality of maximum hours laws for male factory workers was established during this period.

Finally, Part IV of this Review discusses the period from 1923 through 1937, which Novkov refers to as an era of "gendered rebalancing" (p. 34). The focus of efforts to enact protective legislation shifted once again to laws that applied exclusively to women, especially minimum wage laws. The era began with the Supreme Court overturning a minimum wage law for women in Adkins v. Children's Hospital, (6) on the grounds that women have the same right to liberty of contract as men. It ended with the Court upholding a similar law in West Coast Hotel v. Parrish. (7) In West Coast Hotel, the Court adopted the argument that allowing women workers with unequal bargaining power to negotiate contracts for themselves for less than a living wage cannot be considered liberty at all.

As discussed in this Review, throughout Constituting Workers, Protecting Women, Novkov provides an interesting and generally well-researched narrative regarding the debate over the constitutionality and wisdom of protective labor legislation for women. She sometimes shows great scholarly care, rejecting some hoary and popular myths about the Lochner era. Novkov notes, for example, that Lochner itself was something of an aberration in its time, one of the very few cases invalidating protective labor legislation before the 1920s.

On the other hand, Novkov seems overly enamored with applying the concept of "nodes of conflict" to the controversy over protective laws for women. She defines nodes of conflict as "a point at which the public, attorneys, and the courts are all in communication" (p. 20). This Reviewer did not find the nodes of conflict concept especially enlightening, and suspects that it distracted Novkov from taking a more nuanced approach to the history of the controversy over protective labor laws. In particular, as discussed in Part V of this Review, Novkov ignores relevant economic issues, overemphasizes the role of legal argument in explaining constitutional development, and overstates the relative importance of the debate over protective laws for women to the more general debate over constitutional limits on the government's regulatory power.

1. THE ERA OF GENERALIZED BALANCING, 1873-1898

   Novkov appropriately begins her study of the constitutional conflict over protective labor legislation for women with an analysis of two cases decided by the Supreme Court in 1873--the Slaughter-House Cases (8) and Bradwell v. Illinois. (9) In Slaughter-House, four dissenting Justices vigorously argued that the Fourteenth Amendment's Privileges or Immunities Clause protected the right to earn a living from infringement by government-established monopoly. The right articulated in the Slaughter-House dissents eventually evolved into the right to pursue an occupation free from unreasonable government interference enforced by the Lochner Court.

   In Bradwell, by contrast, three of the four dissenting Slaughter-House Justices concurred in the Court's ruling that Illinois could prohibit women from practicing law. They reasoned that "[t]he natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.... The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother." (10) The contrast between the Slaughter-House dissents and the Bradwell concurrence shows that what Novkov calls the "gendered" nature of liberty of contract doctrine under the Fourteenth Amendment was already established in the 1870s.

   Because the Slaughter-House majority eviscerated the Privileges or Immunities Clause, attorneys challenging economic regulations turned to the Fourteenth Amendment's Equal Protection and Due Process Clauses. By the 1890s, state courts were regularly issuing decisions invalidating various protective laws as "class legislation" under the Equal Protection Clause or as violations of liberty of contract under the Due Process Clause. (11) The U.S. Supreme Court, however, interpreted the prohibition on class legislation narrowly (12) and had not yet adopted the liberty of contract doctrine.

   With regard to protective legislation limited to women workers, most of the litigation during this era involved laws that banned women from serving alcohol. (13) Only two of the cases during this era involved sex-based protective laws for women in industry, a category which was soon to be the focal point of a great deal of litigation. In 1876, the Massachusetts Supreme Court upheld a maximum hours law for women because the statute "merely provides that in an employment, which the Legislature has evidently deemed to some extent dangerous to health, no person shall be engaged in labor more than ten-hours a day or sixty-hours a week." (14)

   The other sex-based protective-law case, Ritchie v. People, (15) involved an Illinois law limiting women to an eight-hour work day. Novkov does not discuss the history of this law, but other historians have done so. A broad coalition of women's reform groups had lobbied for the law. (16) These groups believed that women were unable to compete on equal terms with men in the workplace and therefore needed legislative intervention on their behalf to protect them from overwork. In contrast, almost all of the women workers who appeared at trial testified that they preferred to work longer hours to get higher pay. (17)

   When a challenge to the law reached the state supreme court in 1895, Illinois argued that women's biological differences from men, combined with their unique role in bearing offspring, justified the exercise of the state police power on women's behalf (18) In response, Ritchie's attorney contended that women had full citizenship rights and that the law deprived women of their right to make a living. (19) The brief quoted libertarian treatise author Christopher Tiedeman for the proposition that "the constitutional guaranty of the liberty of contract applies to women, married or single, as well as men." (20)

   The Illinois Supreme Court sided with Ritchie. Novkov asserts that Ritchie "did not take much notice of the female workers affected by the statute at issue in the case" (p. 61), "ignore[d] gender" (p. 101), and did not "refer to gender specifically" (p. 124). This reading of Ritchie is inexplicable. While it's true that the Illinois Supreme Court "saw no need to reason differently about police power...