Constituting Workers, Protecting Women

Review: Bernstein on Novkov

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. June 2002.

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 1911 and 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.


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).

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