25 March 2014

No Ma’am: Progressive Reform as an Obstacle to Gender Equality (Introduction)

With a subtle reference to Al Bundy. Here is the introduction to my Supreme Court Seminar paper (you can read the full paper here).

Rapid industrialization in post-Civil War America brought with it swift economic growth and a substantial increase in both the labor force and labor wages.  Women moved out of the farmer’s field and into the factory.  Between 1870 and 1900, the number of women in the labor force grew from 1.9 million to 5.3 million.  The percentage of working women increased from 13.3% to 18.8%. 

At the same time, the period was marked by labor strife and the rise of the labor union.  This gave rise to the Progressive Era, a two-decade long period of social and political reform characterized by extensive government intervention in society and the economy. To the extent that classical liberalism and laissez faire economics were representative of late 19th century America, the Progressive Era sought to reign in the perceived excesses of capitalism. The period belonged to the likes of Richard T. Ely, Roscoe Pound, and Louis Brandeis.  To guard against the perceived exploitation of workers, progressives championed protective labor legislation. The most common reforms were minimum wage and maximum hours laws, especially so when they focused on women.

In the four decades between 1897 and 1937, conservatives (holding the mantel of classical liberalism) would repeatedly skirmish with progressives, especially in the labor arena. The chief weapons were liberty of contract on the conservative side and the state’s police power on the progressive side. To this end, Supreme Court decisions in Allgeyer v. Louisiana and Lochner v. New York ushered in decades of economic substantive due process that became a major thorn in the side of the progressive agenda. A distinct subset of these liberty of contract cases focused on women’s protective labor legislation.

Since the 1970s, a growing body of scholarship has taken a critical look at these Progressive Era cases with an eye toward evaluating the long-term legacy of women’s protective labor legislation. In an empirical sense, most of the work has focused on the period from the Reconstruction amendments until West Coast Hotel v. Parrish and the end of the Lochner era.  Other work has focused on the period from the New Deal forward. Little scholarly attention has been paid to the important links between these two periods.

This paper seeks to add a critical piece to the conversation. By balancing the sober discourse of modern scholarship with historical accounts, news reports, and legal scholarship contemporary to the events as they occurred, I intend to take a closer look at the intersection of two lines of cases. First, Muller v. Oregon and its progeny of cases that serve as precedents for treating women differently than men; and second, a series of cases beginning in the 1930s that abdicated meaningful judicial review in favor of expanded police powers jurisprudence. Beginning in Muller, efforts by the Court to acquiesce to the progressive political agenda did so by perpetuating gender stereotypes and prolonging a period of indifference toward the rights of women. This was the result of a deliberate strategy by progressives to downplay inequality and individual rights in favor of the state’s police power. Both state and federal courts were considerably more deferential to protective labor legislation when it focused on women as opposed to protective labor legislation in general. While my research is focused on the Supreme Court's protective labor jurisprudence as it relates to gender, I will occasionally highlight state cases, especially because much of the labor legislation being challenged originated in state courts. 

This paper will demonstrate that the courts’ already-deferential attitude toward women’s protective labor legislation was reinforced and enhanced by abandonment of meaningful rational basis review. Together, these two lines of cases provided a potent combination that established long-standing and difficult precedents to overcome, and ultimately doomed the prospects of equality for women until the 1970s. Progressive reform became an obstacle to gender equality.

Given a fair chance, the natural evolution of the liberty of contract doctrine might well have led to some fuller measure of gender equality, especially in the labor arena, considerably sooner than actually occurred. Untethered from anachronistic precedents that “perpetuat[ed] the treatment of women as less than full persons within the meaning of the Constitution,”  the struggle for gender equality might have achieved its first significant victory long before 1971.  To be sure, women who supported formal equality constituted a minority among feminists. Nonetheless, they agitated against women’s protective labor legislation as early as the time of Muller and brought cases on their own behalf. Ordinary women like May Cashel, Ethel Nelson, Elmira Simpson and Willie Lyons saw through the paternalistic veil and recognized these laws as restrictive rather than protective. The likelihood of their success may have been low, but the intellectual underpinnings of their argument were alive and well. Ultimately, though, the structural subordination of women doomed their chances.

Part I discusses the important historical context of the Fourteenth Amendment, concerning both its original understanding and the scope by which it was applied in the years immediately after its ratification. Of special interest during this period is the role of American feminists, particularly in terms of divisions within the feminist movement over how to both define and achieve equality.

Part II covers the historical development of liberty of contract. This section explains the history and doctrinal development of liberty of contract through the lens of 19th century scholars and judges. In this section, I’ll review how the progressive movement sought to refocus and carry out their strategy to push back against the perceived excesses of laissez faire capitalism. In particular, Part II focuses on Muller v. Oregon and its progeny as the foundation of progressive reforms, as well as “sociological jurisprudence” and the Brandeis Brief.

Part III demonstrates how a line of cases beginning in 1931 firmly established a modern incarnation of the presumption of constitutionality. By abandoning the traditional 19th century police powers jurisprudence, the Court confirmed that gender discrimination would be subject only to rational basis review. Then, the Supreme Court became so deferential to economic legislation that even reasonable rational basis review became eviscerated.

Finally, I will share the results of my extensive analysis of women’s protective labor cases in the years after West Coast Hotel. In Part IV, I will show how the legacy of Muller, together with the Court’s post-Lochner jurisprudence, created a structural barrier to gender equality. Progressives advocated a calculated strategy to advance their agenda. They did so at the expense of women, who became unwitting victims in a larger political game.
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