Social Feminism, Labor Politics, and the Law : Women, the Law, and the Workplace [1 ed.] 9781136070341, 9780415942812

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Controversies in Constitutional Law Collections of Documents and Articles on Major Questions of American Law

General Editor

Paul Finkelman University o f Tulsa School o f Law

A ROUTLEDGE SERIES

Contents of the Collection Volume 1 Social Feminism, Labor Politics, and the Law Volume 2 Social Feminism, Labor Politics, and the Supreme Court of the 1920s Volume 3 Locating the Role of Labor Politics within Feminism in the Late Twentieth Century

Women, the Law, and the Workplace Volume 1

Social Feminism, Labor Politics, and the Law Edited with introductions by

Sybil Lipschultz University o f Miami

4QWVNGFIG

R

Taylor & Francis Group

NEW YORK AND LONDON

Published in 2003 by Routledge 270 Madison Avenue, New York NY 10016 www.roudedge-ny.com Published in Great Britain by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN www.routledge.com Routledge is an imprint of the Taylor &c Francis Group. Copyright © 2003 by Taylor 6c Francis Books, Inc. Transferred to Digital Printing 2010 All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publisher. 10 9 8 7 6 5 4 3 2 1 Library of Congress Cataloging-in-Publication Data Women, the law, and the workplace / edited with introductions by Sybil Lipschultz. p. cm. 1. Women—Legal status, laws, etc.—United States. 2. Sex discrimination against women—Law and legislation—United States. 3. Women—Employment— Law and legislation—United States. 4. Feminist jurisprudence—United States. I. Lipschultz, Sybil. KF478 .W673 C478 2002 344.7301 '4—dc21 2002005866 ISBN 978-0-415-94280-5 (set) ISBN 978-0-415-94281-2 (vol 1) ISBN 978-0-415-94282-9 (vol 2) ISBN 978-0-415-94283-6 (vol 3) Publisher’s Note

The publisher has gone to great lengths to ensure the quality of this reprint but points out that some imperfections in the original may be apparent.

Contents vii ix

Series Introduction Volume Introduction

Legal Documents 1 38 65 72 84

The New Strain in Industry Josephine Goldmark Some Specific Studies of Physical Overstrain in Industry Josephine Goldmark Labor Law and the Courts, excerpt Josephine Goldmark Muller v. Oregon Bunting v. Oregon

Historical Documents The Right to Leisure Florence Kelly 121 Legislative Control of Women’s Work Sophonisba Breckenridge 134 Women Who Work and Women Who Spend Maud Nathan

99

Scholarly Interpretations 140 Hours and Wages: The Gendering of Labor Standards in America Sybil Lipschultz 164 The Lady and the Tramp: Gender, Race, and the Origins of the American Welfare State Gwendolyn Mink 196 Muller v. Oregon Reconsidered: The Origins of a Sex-Based Doctrine of Liberty of Contract Nancy Erickson

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Contents

219 Protection of Women Workers and the Courts: A Legal Case History Ann Corinne Hill 246 Welfare Reform and World War I Allen Davis 265 The National Consumer’s League and the Brandeis Brief Clement £. Vose 289 Acknowledgments

Series Introduction This ongoing series, Controversies in Constitutional Law, provides teachers, scholars, and students convenient access to the debates and scholarly literature surrounding major questions of constitutional law. Each set of books—from two to four volumes—consists of four elements: an extended introduction to the issue by the editor; reprints of the significant cases and briefs on the subject; congressional testimony and other primary documents on the issue; and a selection of the best scholarly articles on the subject. By conveniently gathering all this material in one place, each set of volumes allows users to become familiar quite quickly with the arguments and positions surrounding a particular constitutional controversy. Scholars and students interested in constitutional law and public policy are often overwhelmed by the sheer amount of material published on controversial subjects. The topics in Controversies in Constitutional Law are timely, politically significant, and intellectually compelling. They are the issues that bring the legal academy, courts, politicians, and general public together—although not always in harmony. Many scholars are barely able to keep up with the material in their own fields, but there is a need to learn about issues beyond one’s specialties. A new course might require an introduction to a problem; one’s research might lead to a new issue. This series is designed to meet these needs, enabling scholars and teachers to come up to speed quickly on the topics in each volume. This series also serves students at all levels of higher education. Students often encounter controversial topics without the background in how the problem developed. These volumes provide such a background. The important cases are reprinted in full; the introductions provide students with a map of the issues; the briefs, congressional testimony, and scholarly articles give convenient access to the arguments and debates. The volumes bring together a wide variety of sources and materials that are unlikely to be found in any one library. The primary documents include cases, briefs, testimony from legislative committee hearings, and, on occasion, executive-branch publications. Few law libraries, university libraries, or public libraries will have all these materials. The secondary literature comes from the scholarly literature of law, history, political science,

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Series Introduction

economics, criminology, and other relevant fields. Some of the articles might also be from serious nonacademic journals. The related government publications, briefs, and congressional testimony are particularly important. Too often scholars overlook them. There is a tendency to focus on court opinions—what the Supreme Court said. Obviously court opinions are important for understanding doctrine, but briefs, especially amicus briefs, are also important sources of information about the larger constitutional controversy the case represents. The politics of a case are often more apparent in these briefs than in either the oral arguments or the Court’s opinion. Similarly, congressional hearings illustrate the social, philosophical, and political dimensions of these questions. The goal of limiting each collection—two to four focused volumes— and the occasional inability to secure a reasonable copyright permission fee for some important articles often force hard and judicious choices. Important articles that are not reprinted here are listed in the Further Reading sections at the end of the introductions. The series Controversies in Constitutional Law provides in one place comprehensive introductions to topics that will satisfy most lawyers, scholars, and students. By combining cases, briefs, legislative debates, and testimony from committee hearings with secondary articles, it is hoped to facilitate access to the issue presented in each set of volumes. Paul Finkelman

Volume Introduction Muller v. Oregon, the 1908 landmark Supreme Court case, is usually associated with the young and progressive attorney, Louis D. Brandeis, who won the case by inventing a new style of argument. Rather than emphasizing legal precedent and reasoning, Brandeis brought the analysis of the social sciences and the need for social change to bear on the case. The now famous brief, which Brandeis presented to the Supreme Court, has been reprinted and is known as “the Brandeis brief.” Showcasing Brandeis’s inventiveness, the Muller case is remembered as the case that later reformers needed to open the way to greater legal regulation of the American economy by the New Deal government during the Great Depression. The story of how Brandeis won the case is a good one. It presents an important moment in the career of a Jewish attorney, prior to his historic appointment to the Supreme Court. It shows the success of “sociological jurisprudence,” a method Brandeis learned from his Harvard teacher, Roscoe Pound. Many scholars who know the tale do not realize that this precedent-setting case was about women who labored long hours in an overheated laundry. One reason for this lack of knowledge may be that the common version of the story appeals to those who follow the “great man” theory of history. “Great m an” history has its challengers, and none more vociferous than the “New Left” historians of the latter twentieth century, who argue that all people, not just those with titles and power, make their own history. To these historians, the Muller case is rooted in labor history and the significance of industrialization in American society; it is about the increasingly horrific working conditions for laborers in factories, and the lives of these heroic workers. To those who study the role of women in history, this case concerns active female participants, whom they locate at the center of historical studies. Women’s historians stress, as well, the role of middle-class wom en’s reform organizations, such as the National Consumers’ League. In revealing the part women have played in history, some women’s historians have come forward to proclaim the importance of previously obscure historical actors. Such historians have also discovered that women researched and wrote most of Brandeis’s work. This has created yet another Muller story. By examining the role of Josephine Goldmark, Brandeis’s sister-in-law, feminist scholars noted that Brandeis did not work alone on this case and that he actually delegated all IX

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Volume Introduction

of the research and most of the writing to her. Brandeis became quite famous due to Goldmark’s work, which is still famous as the “Brandeis brief.” The field of women’s history has flowered in recent years, and scholars have focused on M u llefs famous brief as an example of how a powerful man might take credit for the work of some women—a seemingly small act with vast consequences, since the name Louis Brandeis is well known and the names Florence Kelly and Josephine Goldmark are relatively obscure. Histories of women set out to correct such imbalances, bringing the activities of unknown women to the forefront of knowledge. Although this successful and still ongoing project takes many forms, one of them has been to bring Kelly and Goldmark into view. Nevertheless, this discovery by women’s historians begs the question: Why did Goldmark, a self-proclaimed feminist and suffragist, write a brief that stated outright that women were naturally dependent on men, in essence “the weaker sex,” whose primary role was to nurture young children and keep house? Unlike men, the brief stated, women were seemingly unable to act on their own behalf because they lacked voting rights and because male unionists excluded them from their unions. For this reason, the brief asserted, women needed the state to shorten their hours of labor. As it turns out, the copious work that Goldmark amassed far exceeded Brandeis’s need in creating the final brief. It appears that he excised major portions of Goldmark’s work, producing a document that misrepresented her more complex and nuanced argument. Brandeis’s conclusions were widely circulated, and at the time there was little reason to think that Goldmark and Kelly presented options that Brandeis rejected. However, this might be the case. This volume reprints portions of the previously neglected work of Josephine Goldmark, Fatigue and Efficiency: A Study in Industry. So synonymous was this work with the Brandeis brief that it has often been cited as the published version. In addition to their own extensive efforts to secure a legally shortened workday for women, Goldmark and the National Consumers’ League—the women’s reform association that urged Brandeis to argue this case on behalf of the State of Oregon—decided to publish the work in two volumes to maintain a record of the uncredited work Goldmark had produced for the brief. Fatigue and Efficiency represents the writings Goldmark presented to Brandeis, including those he did not include in the brief. Comparing the Goldmark version to the Brandeis version is also interesting because it shows what material Brandeis had in front of him and what original arguments and conclusions he edited when composing his famous brief. Brandeis eliminated all of Goldmark’s discussions about men in industry in which she demonstrated that men also suffered from fatigue

Volume Introduction

XI

and disease in a hectic industrial setting that forced them to work harder than their health could bear. M ost of Goldmark’s work was gender neutral, but she did include a section on the special case of pregnancy and childbirth and on domestic burdens that fell more heavily on women. This was the only portion of her 328 pages that focused on the differences between women and men. This, of course, was the portion of Goldmark’s research and writing that Brandeis seized upon for his version. He neglected, however, to adopt her warning that these differences should not constitute discrimination and that women needed equal rights that included attention to these differences. This volume reprints the most significant passages from Goldmark’s brief, which show how she treated women’s differences from men in light of the equal rights she favored for women. It also includes examples of her gender-neutral treatment of fatigue and disease resulting from overwork. Reprinted here also is the Supreme Court’s Muller decision, which highlights the extreme departure from Goldmark’s brief that found its way into American law. It also includes the lesser known Bunting case, also brought by the National Consumers’ League, in which the Court extended the right to a legal limit on the length of the workday for men. In this case, Goldmark’s original research proved very useful. Included, as well, are writings by other women who were closely associated with Goldmark and who comprised a political culture of female activists who created legal change for women, even before they themselves were voting citizens. These women, all important political activists, struggled for relief from the exploitation of industrial labor by initiating new legislation and litigation to support intervention of the state in labor relations. Finally, this volume includes scholarly articles that present a range of views on the Muller case, leaving readers with an abundance of evidence and information from which to draw their own conclusions. Purposefully, the volume brings the work of women’s historians and feminist legal scholars together with the legal and historical evidence produced by women. It is this side of Muller that has too long been neglected.

Ill THE NEW STRAIN IN INDUSTRY HAT, then, are the special forms of overstrain found in modern industry, viewing industrial conditions, as was our premise, from the physiological point of view? In a brief sketch of this vast field it will be possible to single out only a very few features for comment. We can do no more than glance, as it were, at some of the innumerable processes which directly or indirectly feed the machinery of the world, supplying man's needs and luxuries. Of those elements in industry which are most characteristic and which make the greatest demands on human energies, we may select the following: speed and complexity, monotony, piece-work, and overtime. Let us attempt to gauge the part played by these factors in a few trades, so as to have before us some concrete examples of industrial things as they are. Other fatiguing influences in machine work, such as noise and the mechanical rhythms, will of necessity come within the scope of our brief analysis, as well as the now recognized relation between fatigue and the incidence of industrial accidents.

W

1.

SPE ED A N D COM PLEXITY

(a) T h e T e l e p h o n e S e r v i c e

Let us begin with our first factors, speed and complexity. Measured by these, few trades can equal in their demands upon the human organism an occupation newly open to the girls and women of our generation and practically new to the last decade. This is the ubiquitous telephone service,—that network of wires which spans continents and binds together, 43

1

FATIGUE AND EFFICIENCY

as never before in history, at least the outward and visible activities of men. Indeed, we could scarcely picture to ourselves the spectacle of modern life without a telephone at every hand, servant of every whim and desire, and by the same token, a new tyrant that few can escape. Now, one part of this mechanism, one link in the chain between two speakers, is the girl's voice which answers every call by day o f night, a link, to most persons, as disembodied and automatic as the receiver on its hook. We are to look a little more closely at this girl's conditions of work. They are special to her business, but not unfairly typical of the new strain in all industry. Two recent official investigations* give us an unusual abundance of facts by which to gauge that phase of the work in which we are here interested: its effects on the health of the workers; its cost, not in money, but in the outlay of woman's physiological powers. The whole telephone business is new, dating from 1876. Originally it employed only men and boys. In 1907, according to a report of the Bureau of the Census, there were 76,638 female operators in the United States as against 3,576 male operators. Something like twice as many persons were employed in other positions as clerks, mechanics, officials, and so on. We shall confine ourselves here to the work of the women operators. These thousands of “ telephone girls" whose ages vary from sixteen years upward, are in a sense picked workers.f In most cities, the companies require for the efficiency of the service, a physical examination of all applicants, and seek to exclude girls and women suffering from eye, ear, throat, or heart trouble. Most companies have also an educational * Report of the Royal Commission on a Dispute Respecting Hours of Employment between the Bell Telephone Company of Canada, Ltd., and Operators at Toronto, Ontario. Ottawa, 1907. Investigation of Telephone Companies made by the United States Bureau of Labor. Senate Document No. 380, 61st Congress, 2nd Session. Washington, 1910. f In one large city, out of 6,152 applicants, 2,229 were refused. (Senate Document No. 380, p. 19.)

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THE NEW STRAIN IN INDUSTRY

requirement, accepting no applicants who have not completed the fifth or grammar grades of the public schools. Most companies also give a month's training in a telephone school where applicants learn the mechanism of the switchboard and the manifold duties of telephone operating. These picked workers also receive, on the whole, more intelligent care than other industrial workers. Fair ventilation of workrooms, rest rooms, luncheons provided at cost, and free, hot beverages at lunch time,—all these elementary “ welfare" provisions have been found useful in keeping up the operator's efficiency and are therefore provided by most companies. So much we have on the credit side of the business, physiologically viewed. What, then, is on the debit side? To gauge this, we must briefly describe what telephone operating is. The most concise description of this intricate subject involves a certain amount of technical detail, since the simplest form of telephone connection requires eleven separate processes on the part of the operator. Yet in no other way than by tracing these separate operations can we intelligently gauge the tax of this occupation. The nature of the work, the large and daily growing number of girls and women engaged in it throughout the country, and the fact that prominent physicians in one community have expressed themselves forcibly upon its physical effects, warrant our devoting material attention to these otherwise unrelated details. The center of the telephone system is the “ exchange." On entering the operating room of an exchange one sees perhaps one hundred young women seated side by side, on adjustable chairs facing the switchboard, which extends in the form of a semicircle or “ U" around three sides of the room. The switchboard looks not unlike a continuous line of upright pianos in front of which the girls are seated. Only, the key-board or flat shelf extending out from the six-foot high vertical face of the board is usually wider than a piano key-board, varying in width from six inches to a foot. The 45

3

FATIGUE AND EFFICIENCY

vertical face of the board is marked off into sections and panels, honey-combed with holes. Each hole in the lower panel of the vertical board is the terminal of a subscriber's telephone, and the holes are so distributed that each operator has before her a certain number of telephones for which she is directly responsible. Just over each hole, or “ answering jack" as it is called, there is a glass-covered orifice, containing a miniature incandescent lamp, which glows whenever a subscriber lifts his receiver from the hook. This light, together with a clicking sound which she hears through her receiver whenever she “ listens in," signals to the operator that she is being called. On the upper half of the vertical board known as the “ multiple" are the terminals, or jacks, of all telephones connected with the exchange, by means of which the operator can connect her subscribers with the persons whom they wish to reach. These upper jacks are repeated or “ multiplied" over and over throughout the switchboard, usually once in each section, or each six feet, so that the operator can reach any line for which she is asked. On the horizontal shelf or key-board, extending out from the vertical face of the board, there are two rows of small metal plugs, attached to cords, the points of the plugs alone showing above the surface of the board. A little nearer to the operator, on the shelf, are two rows of tiny glass-covered signal lamps similar to those over the subscribers' jacks described above, and still closer to the operator, on the shelf, there is a row of small levers or keys. Such is the apparatus, together with the operator's individual “ set,"—a receiver strapped over her ear and a mouth-piece or transmitter suspended so that she can conveniently speak into it, leaving both hands free. When a subscriber lifts his receiver to call “ central," the signal light immediately flashes out at the terminal of his line on the switchboard. The operator thereupon gets into communication with the subscriber by inserting one of the plugs with its attached cord into the hole or jack correspond46

4

THE NEW STRAIN IN INDUSTRY

ing with the glowing light. She then throws forward one of the levers known as the “ listening key.” This connects her with the calling subscriber and extinguishes the signal light. She asks, in the wellknown phrase, “ Number, please," and upon receiving a reply makes the desired connection as follows: She inserts the companion end of the cord which she has used (the cords are in pairs with a plug at the end of each), into the proper hole on the upper “ multiple" portion of the board, bearing the number of the desired person. She also rings up this second person by pressing another lever, at the same time discontinuing her listening key.* Then she makes her first entry upon a prescribed slip, in order to register the call. Thus two subscribers are in communication. But there must be some way for the operator to learn automatically when the conversation is ended. Therefore each pair of cords have connected to them two of the tiny signal lamps. When the operator inserts the plugs into the jacks their corresponding lights begin to glow. As soon as the called subscriber lifts his receiver the signal light goes out, showing the operator that her ringing has been answered. The lights remain out during conversation, but as soon as the subscribers have finished and hang their receivers, the lights above the companion plugs again begin to glow. This warns the operator to sever the connections and to clear the jacks for the next call. Thus the telephone girl must be continually at the topnotch of expectancy, watching intently for the flash of the signal lights, responding instantly to the clicking sounds heard whenever impatient subscribers move their hooks up and down, making and severing connections with all the speed she may. The mere statement of these operations in the simplest form of telephone connection, gives us some insight into the prodigious strain of this occupation upon the special senses,— * In New York City, the operation of ringing and listening is done with one key.

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FATIGUE AND EFFICIENCY

sight, hearing, touch,—as well as the muscular exertion of reaching high up and to the side. We cannot here enter into the complex modifications of the general system described above (as when a subscriber is called whose telephone terminates in a different exchange), and the many different color signals which the operator must instantly recognize when they flash before her, such as, toll calls, nickel machine calls, and many others. As regards the physical effects of the work, we are fortunately not thrown upon surmise but have expert medical testimony to draw upon. This is available in the remarkable report of the royal commission appointed to investigate a dispute between the Bell Telephone Company of Canada and their operators at Toronto. The 26 physicians who testified had examined the exchanges and the nature of the work. We must postpone until our next chapter their detailed statements as to the detriment to health from overwork in the taxing telephone service, the specific injuries to the sense organs, and the disastrous reactions upon the operator's nervous system. Here it is enough to say that after weighing the physicians' testimony and recommendations, the royal commission, with some misgivings, permitted the total number of working hours for women switchboard operators to be fixed at seven hours, broken by several relief periods and spread over a period of nine hours. The commission took pains to say, however, that in view of the medical evidence before them, a seven-hour workday for telephone operators seemed to them “ still too long," and they concluded: “ In our opinion a day of six working hours spread over a period of from eight to eight and three-quarter hours, and under as favorable conditions as may be expected in an exchange doing a large business, is quite long enough for a woman to be engaged in this class of work, if a proper regard is to be had for the effect upon her health."* * Two hours’ work, }4 hour relief, hours' work, 1 hour intermission, 2 hours’ work, # hour relief, and hours' work. Report of the Royal Commission, pp. 99-100.

4s

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THE NEW STRAIN IN INDUSTRY

Such being the royal commission’s mature conclusions, we turn to consider the same work in the United States, as set forth in the recent report of the United States Bureau of Labor. The methods of operating here and in Canada are the same. Where the royal Canadian commission found seven hours “ still too long" and recommended six hours, we find the average hours of work in the United States reported as eight and a half hours per day. But this is one of the averages which hide the truth, and, in practice, owing to various reasons, the actual working hours are much longer. Telephone operators are divided into various working groups, or “ tricks," who come on and go off duty at widely varying terminal hours, and have their luncheon and relief periods at separate times. During certain busy hours of the day, known as “ peak of the load," morning and afternoon, the service is vastly increased and requires an increased number of operators. These various arrangements of work are necessary because the telephone exchange is never closed. The fires of Vesta burn day and night! They must be tended unceasingly. If the average working hours are eight and a half per day, then many girls must work longer than that each day, as others work less. Thus, to mention merely at random some daily hours far in excess of the average eight and a half, in 1910 the night operators of the Bell Telephone System were reported working fifteen hours in Springfield, Missouri; twelve hours in Kansas City, Missouri; nine hours in New Orleans, Louisiana, and in Dallas, Texas. Day operators were reported as employed ten hours net in Kansas City, and nine hours net in Atlanta, Georgia. And the day operators of the American Telephone and Telegraph Company were reported as employed nine hours net in Kansas City and New York City.* The requirement of overtime work makes the workday even longer, although the hours officially reported already * Senate Document No. 380, 61st Congress, 2nd Session, pp. 37 and 38 4 49

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FATIGUE AND EFFICIENCY

by far exceed the maximum deemed compatible with health by the Canadian physicians. The custom of requiring overtime in most companies lengthens the workday by adding from a few minutes to two and a half hours. The American report is full of references to this pernicious practice. In one city, for instance, where overtime is “ not above the average," the company reports that, on overtime, their day operators are on the premises twelve and a half hours and on duty ten hours. Overtime is stated to be an “ integral part " of the schedule of hours in a number of telephone companies. “ Operators not only are asked to take their turn in working extra hours, but in some companies a regular extra period is assigned to each operator for certain days each week. She is virtually compelled to do this extra work, lest by refusing she incur the displeasure of her chief operator, or get the reputation of shirking her share of work."* The report of the commission to investigate the conditions of working women in Kentucky, states that in one exchange where the regular hours were nine in one day, an operator worked 39 hours overtime during the first two weeks of November, 1911, in addition to her daily work. The report adds: “This is not an exceptional case. Many other girls are working as long hours."f One of the most vicious forms of overtime is known as “ working through"; that is, working on both a day and a night shift. Thus, in one company, where the shift known as the “ split trick operators" usually work eight hours (from 11 a. m. to 2 p. m., and from 4 to 9 p. m.), an operator who “ works through" is employed thirteen and one-half hours (from 11 a. m. to 2 p. m., and again from 4 p. m. to 7 the next morning), with four and one-half hours off duty during the night. * Senate Document No. 380, p. 110. f Report of the Commission to Investigate the Conditions of Working Women in Kentucky, p. 30. Louisville, December, 1911.

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THE NEW STRAIN IN INDUSTRY

“ The next day the operator reports as usual. In one case a fifteen-year-old girl (who claims to be sixteen) is reported 'working through* four times in two weeks. While this is not a regular thing,” says the report, “ it is done with sufficient frequency to be worth noting.”* In connection with overtime work, nothing is more striking than the extreme variation in the number and percentage of operators employed on overtime in various cities. In New York City, for instance, it is reported that less than one-fifth of one per cent of the operators work overtime in a given period. In Boston and Washington, also, the number is small, while in New Orleans and Omaha over 90 per cent of the operators worked overtime during the same period. In Cleveland, Louisville, and Nashville, over 85 per cent, in San Francisco and Dallas, Texas, and Atlanta, Georgia, over 60 per cent of the operators are reported to have worked overt ime.f Besides overtime, several other hardships of the telephone service which are prominent in the American report, and greatly intensify the strain of this occupation, need mention. One of these is the almost universal requirement of Sunday work twice a month. This hardship speaks for itself and scarcely needs comment. It means that for most operators the day of rest, which may not be lost without physiological retribution, comes only once a fortnight. Sunday and holiday work clearly cannot be avoided in the telephone service, but as the report remarks, only two large companies “ have discovered that this need not mean seven days' work each week.” A second acute hardship of the service concerns the relief periods, usually fifteen minutes long, which are designed to break the morning and afternoon work. The Canadian physicians laid supreme stress upon the importance of such reliefs as absolutely indispensable periods of recuperation, considering even twenty minutes off duty too short to compensate for a two-hour period of work; but in many com* Senate Document No. 380, pp. 1 1 1 - 1 1 2 .

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f Ibid., pp. 90-91.

FATIGUE AND EFFICIENCY

panies these reliefs are regarded by the management as favors to be given or withheld at will, rather than necessities. At any “ rush" when most needed, the reliefs are most often curtailed. Of 331 girl operators interviewed by agents of the Bureau of Labor, 126, or more than one-third, reported that they had either no relief or received it only on request. “ Where this system obtains, girls feel a reluctance to ask for relief; sometimes they feel that to do so is to jeopardize promotions, and the new operators who need it most are usually the very ones who fail to get it, because a feeling of strangeness or timidity keeps them from asking favors."* A third hardship of the telephone service, as disastrous to the operator's health as the loss of the “ relief," is known as “ excess loading." This concerns the number of calls handled by each operator per hour. Most of the experts for the companies consider 225 calls per hour the “ breaking point of efficiency," that is, the number which cannot be greatly exceeded for many minutes without injuring the service rendered to the public. As the report rightly states: “ It is safe tasay that the breaking point of the operator's health is not far from the breaking point of efficient work."t “ She is expected to give all the subscribers the quickest possible service in the order in which their calls come in, but when several signals come at once and others come before these can be cared for, the order of calls is necessarily lost and the effort is concentrated merely on clearing the board, or catching up. It must not be forgotten that with each signal there is not only the flashing of a small light in the operator's eyes, but there is a clicking sound in her ears through the receivers fastened to her head. So when the impatient subscriber, angry because his call has not been answered, moves the receiver hook of his 'phone up and down rapidly, he flashes the signal light in front of the operator, and produces a click in her ears every time the hook goes up and down. The consciousness of numbers of people waiting for call connections she is unable to make, and that each one is growing more impatient each second; that a supervisor is standing * Senate Document No. 380, p. 33.

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| Ibid., p. 60.

THE NEW STRAIN IN INDUSTRY

behind her either hurrying her or calling her numbers to be taken by other operators; that a monitor may plug in and criticise any moment,—"these, with the height of up-reach and length of side-reach, go to form the elements of strain on the operator who is 'overloaded/"* Yet, in spite of its known effect upon health and efficiency, an inexcusable degree of overloading exists in a wide range of cities, chiefly in the south and west. Accepting an average of 225 calls per hour as the breaking point, many exchanges were found exceeding that number for all operators in the exchange. The table below gives some of the cities found exceeding not only this accepted limit, but exceeding 275 calls per hour.f TELEPHONE EXCHANGES IN FIVE CITIES W H ER E CALLS EX CEED 275 PER HOUR

Company

City

Exchange

Hour Ending

No. of Calls

Mo. and Kansas Tel. Co.............................

Kansas City, Mo.

West

9 P.M.

281.7

Pac. Tel. and Telegraph Co................... Los Angeles, Cal.

East

6 P.M.

285 2

7 PM .

317.0

San Francisco, Cal. Seattle, Wash. So Bell Tel. and Telegraph C o ................. Birmingham, Ala.

8 P.M.

303 0

Market

11P.M .

279 0

Franklin

3 P.M.

308 3

Queen Ann

6 P.M.

283.2

Main

11P .M .

301.5

(b) S p e e d i n t h e N e e d l e T r a d e s Turning now to other industries in which women and children are employed in great numbers, we find a similar * Ibid., p. 56.

t Ibid., p. 61.

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FATIGUE AND EFFICIENCY

state of affairs. Let us next consider the typically feminine occupation of sewing, the traditional sphere of womankind. It is undeniable that a great saving of human energy was accomplished when the first power machines replaced the ordinary foot sewing machine. Long hours of work at foot sewing machines had been responsible for many female disorders and had wrecked the lives of many women. But we must not close our eyes to the cost of the new order. Mention has already been made of the increasing perfection of motor sewing machines. Some kinds, as we have seen, now carry 12 needles, others set almost 4000 stitches a minute. Let any observer enter a modern roaring, vibrating workroom where several hundred young women are gathered together, each at her marvelous machine, which automatically hems, tucks, cords, sews seams together, or sews on the embroidery trimming of white underwear. In the well equipped shops each girl has a brilliant electric light, often unshaded, hanging directly in front of her eyes over the machine. Her attention cannot relax a second while the machine runs its deafening course, for at the breaking of any one of the 12 gleaming needles or the 12 darting threads, the power must instantly be shut off. The roar of the machines is so great that one can hardly make oneself heard by shouting to the person who stands beside one. What must be the physiological effect of work so carried on during long hours? In New York state, for instance, the great center for the manufacture of women's stitched white wear, which is supposed to have been perfecting its laws for women since their first enactment twenty-six years ago, young girls who have reached their sixteenth birthday may legally be employed at power machines twelve hours in the day during five days in the week.* Illegally, they are employed even longer at “ rush” seasons. The strain of this industry is further intensified by two other factors, which will be discussed subsequently more at length, but which must not go unmentioned here. Pay so *See page 4 for new law enacted in 1912.

54

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THE NEW STRAIN IN INDUSTRY

low that it makes a less than living wage, and great irregularity of employment, exist in the stitching trades in combination with the excessively long hours, possibly because of them. These factors, at any rate, make an evil combination,—upper and nether millstones between which the health of the girls and women in this trade is almost inevitably ground. It is true that some girls earn high wages at piece-rates during the busy season, reaching $18 and $20 per week. But the busy season is short—varying from two to three months for the winter, and again for the summer trade, and the year’s earnings of the best paid workers fall short of decent self-support. The great majority earn wages so low and so precarious (from $4 00 to $8.00 or $10 per week), with weeks and months of non-employment, that were it not for the testimony of trustworthy witnesses it would be scarcely credible that women living away from home and wholly dependent upon themselves, could support life on such a yearly income.* These allied problems of low wages and irregularity of work may seem to lead too far afield from our special interest in industrial overstrain. But they are closely knit to it, and in a dozen ways are related to the length of the day's work. With over-long hours, even with the ten-hour day, all that double burden of household work added to wage work, which no workingwoman can wholly escape, becomes more burdensome. Whether she Kves at home, her own or her parents', and helps in the household, or lives alone and is thrown on her own resources for clothing and clean linen as well as for food and for some sort of habitat, she must find time for some domestic duties after her wage work is done. Two traditional economies of women, unattained by men, are washing their linen, and mending, if not making, their own clothes; and after a working day of reasonable length, working girls can and do achieve these economies without too great a tax upon their endurance. But when overtime * Clark, S. A., and W yatt, Edith: Making Both Ends Meet. New York, Macmillan, 1911. (These articles are based upon a study made for the National Consumers’ League of the income and outlay of more than 200 working girls, living away from home, in New York City.)

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confines them, as it does in the stitching trades, until nine and ten o'clock at night, irregularly, for weeks in succession, we find such pitiable items as those disclosed in the study above referred to, of 200 working girls who live away from home in New York City. In one case of extreme overwork, out of a total yearly expenditure of only $41.85 for all clothing, an unhappy overworked girl spent $15.60 for stockings. She lacked time and strength for the humblest care of her wardrobe, darning stockings, and instead, continued all year to buy two pairs a week, at 15 cents each. In another case a similar disproportionate expenditure of $23.52 for 24 shirtwaists at 98 cents a piece, out of a whole year's expenditure of $194.50, resulted also from an exhausted girl's lack of time and spirit for mending. The remarkable folly of such expenditures makes them none the less piteous evidences of the exhaustion of these girl operators, alternately overworked at high power machines and then left destitute of work and health. Many other ways might be shown in which low wages together with the excessive length of the workday contribute to the new strain of industries. Physiologically considered, as we shall see, the worst effect of low pay, especially low piece-rates such as prevail in the stitching trades, is their incentive to a too great intensity of work, and to a feverish speed on the part of the operators. (c) T h e T e x t i l e

In d u s t r y

In the sewing trades, then, the elements of speed and complexity are growing by leaps and bounds. The same thing is evident in another great trade, employing women and children, the textile industry. Here the increasing strain upon the workers, due to improved equipment, may be described by one of the officials whose daily work brings them into contact with the conditions of which they speak. " For the first time women were interviewed who were running twelve and sixteen Draper looms. These machines 56

14

THE NEW STRAIN IN INDUSTRY

are practically a recent addition, and are so arranged that the filling in the shuttle is changed automatically, thus enabling them to go at a greater rate of speed and with less interruption. The women are not expected to clean, oil or sweep. This matter was quite fully discussed and the complaint made that the work was too hard, but that they tried to do it, as they were dependent upon their positions and they knew there were plenty of foreign men waiting for their places. Where a woman has been accustomed to tend a six-loom set, with the Drapers she is given from twelve to sixteen, which extend over quite an area. There is no time for sitting during the day, as when employed on the other looms. One woman said she could not sleep at night after running these vast machines, and many have had to give up their places and find other work. “ This marks another evolution in the machinery world. Years ago, a woman tended two slowly running looms. Later, as the hours of work grew less, the number of looms was increased to four and six, and now with the Drapers, an operative is expected to look out for twelve or sixteen."* Even this statement does not fully cover the facts. It is not uncommon in New England mills for one weaver to tend from 16 to 24 Northrup or Draper looms. The number of looms attended by one weaver has even risen as high as 36 in southern and, less frequently, in northern mills. But the output is said to be less satisfactory than when each worker runs a smaller number of looms. It is true that the new automatic attachments of the Draper loom enable weavers to run a larger number of such machines with no greater effort or fatigue than was formerly involved in running a smaller number of old looms. But this is true only up to a certain point. According to a liberal estimate, after a weaver is required to attend more than 18 looms, the advantages of the new devices are more than counterbalanced by the increase in numbers, and the strain of the occupation becomes too great. Thus, for instance, the strain upon the weaver's attention was greatly lessened by such an automatic invention as the recent warp stop-motion, whereby * Report of the Maine Bureau of Industrial and Labor Statistics, 1908, pp. 42-43.

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FATIGUE AND EFFICIENCY

power is automatically turned off and the loom stops at breakage of the warp. But when one weaver has perhaps 24 looms to tend in place of the former eight, the strain upon attention in watching for the automatic stoppage of the looms is even greater than before. Since the weaver's wages depend upon the continuous running of the machines, the strain is continuous. The space over which 24 looms extend requires also much more walking on the part of the weaver, since she may be called to and fro to any one of the looms in turn, to any place in the alley or alleys along which they are ranged. Yet the physical and nervous cost of running three times as many looms as before the Drapers were invented, has been so little regarded that the manufacturers of the loom prophesy* an even greater increase in the number of machines per worker. They see no reason why in time one weaver should not run 50 looms, provided only that a sliding seat be arranged along the alley to relieve her from constant walking to and fro. If this hopeful prophecy is not fulfilled, it will probably be due to the unsatisfactory economic results of the machinery rather than to any consideration of the human agents. 2.

MONOTONY

Besides speed and complexity of operation, work with the Draper looms illustrates also a third factor in industrial strain, mentioned at the outset; that is, monotony of occupation. Weavers formerly varied their work by cleaning and oiling the machines, fetching their own filling, etc. Now all these things are done by less skilled hands, while the weaver, in order to keep up with the number of her looms, attends strictly and continuously to running the machines. In all trades, operations tend to become more and more machinelike in regularity and sameness. Labor tends to become more and more subdivided, each worker performing steadily one operation, or part of one operation. * Labor Saving Looms, p. 112. Third Edition. The Draper Co., Hopedale, Mass., 1907.

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THE NEW STRAIN IN INDUSTRY

This kind of single-minded concentration of the workers upon their immediate tasks obviously makes for speed and perfection of output. It is an integral part of the new industrial efficiency of our day and it saves constant waste, both of time and of materials. But we must also consider the reverse side of the picture. If concentration and subdivision are part of the new efficiency they are part, too, of its new strain. So far as the workers are concerned, subdivision and concentration are added hardships of the long day. For they lead to that monotony which results from the endless repetition of the same operations, and against which the human spirit innately revolts. Monotony, indeed, may make highly taxing to our organism work which is ordinarily considered light and easy. This may be observed in many different occupations. (a) T

h e

Ca

n n e r ie s

Thus, in the canneries, which are increasing from year to year in every fruit and vegetable growing state from Maine to California, the chief fatigue of the work is due to its combined speed and monotony. We may well examine a little in detail some of the ordinary cannery processes, because they illustrate the new strain of industry which we are considering, and because the physical and nervous tax of these occupations has been little recognized throughout the country. A comparatively short span of time has sufficed to see evolved from the yearly preserving and jelly pots of our mothers' generation the highly speeded, intricate machinery of the modern canneries. Indeed, the transformation of the industry is not yet complete. Canning has still the double disadvantage of a household and a factory business. Cannery workers suffer from all the pressure and speed of great commercial establishments. They suffer also from the canner's inadequate methods of management, inherited from the original home work which preceded the canneries. When each family provided for itself a winter's supply of fruits and sweets, there was little hardship in a 59

17

FATIGUE AND EFFICIENCY

few days' work at picking and preserving. It is popularly supposed that canning today is very much the same, and that it affords farmers' wives and children, in certain parts of the country, pleasant holiday work and pin money during the summer. But in reality this is far from true. We may take as typical, in spite of local differences, the canneries in New York state, since a recent official investigation* describes the conditions there, and they happen also to be familiar to the writer. Any person who is not familiar with these establishments must imagine them situated sometimes in open country, sometimes on the outskirts of small towns, throughout the central and western part of New York state. A cannery usually consists of one central building, where the machinery is supposed to be located, and adjoining sheds where the work of preparation—such as stringing beans, husking corn, hulling strawberries, peeling beets, tomatoes, etc.—is supposed to be performed. On the whole, the new strain in the canning industry has come, as in most industries, with the introduction of machinery. It is true that even the familiar work of preparing fruits and vegetables for canning has become more taxing to the health of the workers, on account of the greater speed at which it is done, owing to the very low piece-rates paid for this work.f But the main change since canning was taken out of private kitchens has been due to the machine processes. Two of the most important of these are known as “ sorting" and “ capping." For “ sorting" vegetables, conveyors or endless moving bands carry past the girls and women seated or standing at the sorting tables, a ceaseless stream of peas or beans to be picked over for broken or spotted vegetables, thistle buds, or other imperfections. Hour after hour, from morning until * Annual Report of the Bureau of Factory Inspection. Report on the Work of Children and Women in Canneries. New York State Department of Labor, 1908 f One-half to one and one-half cents per pound for stringing beans, etc.

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THE NEW STRAIN IN INDUSTRY

night (except for stoppages from breakdowns and irregularity of supply), the workers' eyes and attention must be intent upon the moving stream before them, shoving back the tide with one hand if it comes too fast, while with the other they pick out the imperfections which must not be allowed to pass into the cans. The work is sufficiently easy, so far as muscular exertion goes, but the tax upon eyes and attention is severe, and even after considerable experience, women complain of the nausea and dizziness resulting from the monotonous examination of the moving surface of the conveyors. The work of the “ cappers" is more severe than that of the “ sorters" on account of the greater speed at which the conveyors are run. When the cans have been filled with fruits or vegetables, and covered with brine or syrup, they are ready to be hermetically sealed. The conveyors carry them from the automatic “ filler" to the sealing or capping machine. One to three “ cappers" are employed, who place the metal caps or covers on the filled cans in rapid succession as they file past swiftly to be soldered. The capping girl sits close to the red-hot sealing irons, usually holding a number of caps in her hand, and dropping them monotonously, one at a time, upon the cans as they pass swiftly on the tireless conveyor, at a rate varying from 54 to 80 cans per minute. It is said that a second capper is usually employed on machines operating faster than 60 cans per minute. The fatigue of the work at the conveyors or sorting tables is increased by the unnecessarily constrained and uncomfortable positions to which the girls are subjected. The tables are rarely at a right height to make this work as easy as possible. Sometimes they are so high that the workers must stand all day; sometimes so low (3 feet from the ground) that the workers cannot sit with their knees under the tables, but work in twisted and awkward attitudes. Moreover, the seats themselves are totally inadequate. According to the New York report, of about 1,400 girls and women engaged in sorting peas and beans at various factories in the summer of 1908, only about 180 had chairs to sit upon. The others 6i

19

FATIGUE AND EFFICIENCY

were supplied with inadequate boxes, crates, stools, or benches. During a long workday, not infrequently exceeding twelve hours, the difference between being comfortably seated at work or crouched upon an improvised support is self evident. Yet these two operations of “ capping” and “ sorting” employ more women in the canneries than any other machine operations. The New York report states that about 1,400 persons were employed at “ sorting” peas and beans alone. Two hundred and twenty-seven girls were employed in “ capping” peas, beans, corn, tomatoes, and fruits. Besides the work of “ sorting” and “ capping,” another machine operation is highly taxing. This is feeding the corn cutters, and it is also performed by women. The workers feed ears of corn into the cutters at topmost speed. “ It is very rapid work,” says the New York report,* “the machine is very noisy, kernels of corn are flying everywhere, and everything is damp and sticky from the juice of the cut corn. Of the 61 women employed at this work, 41 were standing. The cutters are operated at high speed and as 'their capacity is only limited by the rapidity with which the feeder can place the ears in the feeding trough,’t the operators are expected to work, and do work, at high tension.” Such is the nature of the most important machine operations at which women are employed in the canneries. It is true that the working year is short. Canning is, perforce, a season trade, though the season lasts much longer than merely a few weeks, as the canners would have us suppose. In establishments which can peas, beans, and corn only, the season is from about the last week of June until about the middle of October; that is, between three and four months. Canneries where fruit is packed have a longer season: strawberries ripen in June and apple packing is often carried on into December, so that the season lasts between six and seven months. * Op. cit., p. 374. t "Circular of sales house distributing one of the leading makes of corn cutters.”

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THE NEW STRAIN IN INDUSTRY

Even longer duration of employment is reported by the latest government investigation of canning establishments in Maryland and California. Agents of the United States Bureau of Labor studied the conditions of employment in both city and country canneries. The government states that 10 Baltimore canneries, operated during twenty-nine to fifty-two weeks in the year; that is, between seven months and an entire year. Four of the canneries reported a range of fifty weeks or over. Five city canneries in California varied in duration of operation, but four of the five had a season of more than twenty-nine weeks; that is, over seven months. Four country canneries in California varied between nineteen and one-half to twenty-four weeks in operation.* Moreover, our studies in fatigue have shown us that overwork is not balanced by idleness, when the physiological limits have been over-run. Girls in the critical period of adolescence, and women who are overstrained during half the year, or even during a quarter of the year, may be permanently wrecked in health. That they are so overstrained has been shown by repeated private investigation of New York canneries. During the summer of 1911, women were observed working fifteen hours a day during successive days. According to the Bureau of Labor Bulletin, in 10 Baltimore canneries employing 2,214 women the hours of labor reported by the employers themselves include “ days of 17^, 16>£, 15}^ hours, and weeks of 93, 91}4 and 81 hours.”f In California, the employers themselves report “ days of 18, 15 and 13}4 hours, and weeks of 96>£, 90 and 83 hours.” In the cannery occupations, eyestrain is an added tax, but in many kinds of work it is the sheer repetition of uninteresting samenesses that makes the work fatiguing. So in the making of paper boxes, the infinite repetition of mechanical movements—steadying a strip of paper in a boxcovering machine, guiding it by a gauge and replacing the * Bulletin of the U. S. Bureau of Labor, No. 96, September, 1911. Hours of Women’s Work in Maryland and California, pp. 355 and 393. t Ibid., pp. 355 and 393.

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FATIGUE AND EFFICIENCY

strip by another when it runs out—continues for ten hours in the day, or longer at “ rush” periods. In a factory where hinges are made, girls spend a long day's work putting 50 hinges a minute through a machine, lifting a hinge out, slipping it into place, replacing it by another hinge, unvaryingly —and the list of such occupations might be indefinitely extended. (b)

S h o e M a k in g

Even in trades which require highly skilled workers, the processes of manufacture are so subdivided, and are so reduced to the simplest units, that a man or woman spends his or her entire working life performing over and over a fractional part—sometimes less than one-hundredth—in the construction of a whole. No trade illustrates better this minutest subdivision of work than the making of shoes. Ten years ago the United States Industrial Commission, in its report on the hours of labor in various industries, took occasion to mention specifically the greater intensity of labor “ in the boot and shoe factories where the operator is required to handle thousands of pieces in a day and guide them through the machine.” In the decade which has passed since this was written, the speed and subdivision of work at shoe machinery have been greatly increased. We may obtain an idea of the extraordinary specialization in this trade at present when we learn that a well-built shoe has passed through the hands of about 100 workers and through the operations of about 60 different kinds of shoe making machinery.* These figures do not include the workers in the stitching room, where a separate force sews together, on specially constructed sewing machines, the pieces of leather and lining which make up the so-called “ uppers.” From the stitching room, the flat, sewed uppers are sent to the making or “ bottoming” room, where they are shaped over lasts fastened to the soles, and made up into the forms which we recognize as shoes. * Goodyear Welt Shoes, How They Are Made. United Shoe Machinery Co., Boston, 1909, p. 11.

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THE NEW STRAIN IN INDUSTRY

Of all these machines and operations which go into the making of shoes, we will examine two a little more closely. The first of these is the “ upper trimming" machine, through which the shoe passes on its way to completion. The stitched upper has already been pulled over the wooden last, which gives the shoe its shape, by an extraordinarily ingenious machine that pulls the leather with pincers evenly and tightly down over the last, driving in a tack at every pull, so as to hold the upper exactly in place on the last. In pulling the leather over the bottom edge of the last, there is naturally a surplus amount of leather left at the rounded toes and some along the sides of the shoe. This is “ crimpled” or fulled in against the insole. Now the trimming machine, which we are considering, trims off this surplus leather fulled in at the toes and side, so as to make the bottom as smooth as possible before the sole is sewed on. The trimming machine consists of a sharp knife edge, operating constantly against a sharp edged revolving top. The man who works the machine stands, holding upside down somewhat below the level of his eyes, the partly made, still unsoled shoe. He turns it skilfully and rapidly on the revolving top, against whose sharp edge the second knife-blade operates, cutting off all the surplus crimpled leather. The work is extremely rapid and absolutely uniform. But it takes skill and close attention. The machine could easily cut off too much, or could cut into the upper, if the swift handling of the shoe were not exactly correct. The workman must be skilled, but all that constitutes his work is daily to revolve in his two hands about 2600 pairs of shoes, or 5200 single shoes. The expert workers are able to trim off that number of uppers daily in this machine. It is not surprising that such monotony of occupation should be a factor in fatigue. For the work is unvaried. The man who operates the upper trimmer does nothing else. His skill and speed have been acquired by the extremest specialization. He performs, perhaps, less than one-hundredth part in the making of a single shoe, and he does not know how to operate, or 5 6$

23

FATIGUE AND EFFICIENCY

would be extremely awkward at, the machine next him which performs a different hundredth fraction of the manufacture. This is men's work in shoe making. The next example is women's work. It is the operation of the new eyeletting machines, which move with what the makers rightly describe as “ bewildering rapidity." The girl who operates this machine sits in front of it, guiding the flat sewn uppers, which are to have eyelets punched into them, somewhat as she would guide the material in a sewing machine. She adjusts levers and various mechanical contrivances to regulate the speed and spacing of the eyelets. Women maintain that they can work faster than men at this machine, because they can keep a supply of uppers ready in their laps, while men are obliged to keep their supply of uppers next to them and have to make an extra motion of the arm to pick them up. The output of the machine varies according to the spacing of the eyelets. Men's shoes, which have only four or five evenly spaced holes, naturally go more quickly than women's, which have often as many as 12 holes irregularly spaced. An expert worker at the eyeletting machine can finish 2000 pairs of ladies' shoes in one day, although this amount, like that given above, is probably 20 per cent higher than the average worker's output.* Again, the work is skilled, extremely swift, and monotonous. The workers do not have the opportunity of relaxing the particular kind of attention which their machine requires, for each one is a specialist in her own fractional field only. It is the acme of subdivision. Astonishing as are the material results in output, this minute division of labor and the unrelieved monotony of work which it brings must be counted in any effort to appraise the new strain of industry. Not machine workers only, mere feeders of larger automata, but hand workers too, suffer from the blight of monotony. The girls and women who pack the innumerable small objects which must be wrapped before * Statement in a letter from a representative of the United Shoe Machinery Co., March 4, 1912.

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THE NEW STRAIN IN INDUSTRY

they reach the retail stores—such as all sorts of glass objects, lamps, crackers, candy, and other food-stuffs—have an occupation of unrelieved monotony. It requires no more judgment or skill than to feed a machine, only speed and the indefinite repetition of dull, mechanical movements. 3 . PHYSIOLOGY OF MONOTONY

It goes without saying that monotony of work, of which these are random examples, cannot be avoided in our industries. It is a part of their development, and even when ingenious machines are ;nvented to do work previously done by hand, the running and feeding of such machines often provides only another form of monotonous work for the human agent. With subdivision, and the loss of craftmanship, monotony of work in greater or less degree is inevitable, and may well be accepted as such. For when once monotony is recognized as a real hardship, and as in itself a source of fatigue, rational means of relieving it may be sought, in shortening hours of monotonous labor and alternating work of different kinds. An interesting example is given by a German factory inspector of excessive fatigue resulting from light, but monotonous, work on corset steels, which was relieved by periodical changes of work for the employes in question.* Enlightened employers in various industries have found such alternations of work practically beneficial in stemming fatigue. From our physiological point of view, this is entirely logical, because the strain of monotony is not due merely to the distaste for work and the aversion it engenders. Monotony of occupation is a true factor in inducing fatigue, because it has a true physiological basis, which can briefly be made clear. We know that with repetition and sameness of use there results continuous fatigue of the muscle or organ used. So, too, with the nerve centers from which our motive power * Quoted by Dr. Emil Roth. Ermiidung durch Berufsarbeit. Fourteenth International Congress of Hygiene and Demography, Berlin, 1907, Vol. II, Sec. IV, p. 614.

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springs. We must bear in mind that the special functions of the brain have separate centers. Thus, there is a center for hearing, another for sight, another for speech, etc. When certain centers are working continuously, monotonously, from morning to night, day by day and week by week, it is physiologically inevitable that they should tire more easily than when work is sufficiently varied to call upon other centers in turn. The monotony of so-called light and easy work may thus be more damaging to the organism than heavier work which gives some chance for variety, some outlet for our innate revolt against unrelieved repetitions. Monotony often inflicts more injury than greater muscular exertion just because it requires continuous recurring work from nerve centers, fatigue of which, as we have seen, reacts with such disastrous consequences upon our total life and health. The evils of monotony illustrate again how closely all the functions of our life are bound up together; how the physical and nervous and psychic parts of us react and interact upon one another. Aversion from a monotonous grind of work, the effort of the will to “ keep up," requires just so much more nervous stimulus from already tired nerve centers. 4.

NOISE

In both the needle and textile trades, which we have taken as types of work involving speed and complexity, fatigue is the more quickly induced by other attendant influences which are common to most machine *vork. One of these fatiguing influences is the noise of the machinery. The fatiguing effect of the roar of machinery is chiefly due to its influence upon the faculty of attention. Mental fatigue is “ characterized pre-eminently by a weakening of the powers of attention."* Voluntary attention is essentially a selective process, a “ focalization and concentration of consciousness"! upon one thing or a few from among the multi* Lee, op. cit. Harvey Lectures, 1905-06, p. 180. t James, William: The Principles of Psychology. Advanced Course, p. 426. New York, Henry Holt and Co., 1899.



26

THE NEW STRAIN IN INDUSTRY

plicities, physical and mental, in whose midst we live. There is thus in attention a sensation of effort, and fatigue of attention is in direct proportion to the continuance of the efforts and the difficulty of sustaining them. Now, under the influence of loud noise, attention is distracted and the difficulty of sustaining it increased. The term reaction time, as is well known, is used for the minute interval between the occurrence of some external phenomenon and the signal of its having been perceived by any given individual. This interval is, as a rule, almost infinitesimal. It is counted in hundred-thousandths of a second, yet individuals differ markedly in the speed of their reactions. In laboratory experiments these infinitesimal differences are exactly measured by the use of Hipps' chronometer, a stop watch constructed to mark the thousandth part of a second. The laboratory experiments confirm what we know from everyday life, that attention increases, and fatigue of attention decreases, our promptitude of reaction. Thus in a game of tennis, for instance, or in any sport where the reaction must be instant, we fail to make prompt returns as soon as attention is in any way distracted and we are off guard. Measured by the chronometer, most people take about 134 thousandths of a second before responding with the hand to a touch on the foot, but fatigue of the attention may double the length of this reaction, prolonging the interval to as much as 250 thousandths of a second. Now, further laboratory study shows how noise, like fatigue, retards the time of reaction. Mosso quotes* an experiment which showed that when an organ was played, reaction time was increased from 100 thousandths of a second to 144 thousandths, before the subject of the experiment showed that he felt a touch upon his left hand. This retardation took place in spite of a greater intensity of attention, and whenever the disturbing sound ceased, the time of physiological reaction became as before. James quotes more careful, detailed studies of Wundt which disclose the * Mosso, Angelo: La Fatica.

English translation, pp. 204 and 205.

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FATIGUE AND EFFICIENCY

same kind of retardation in reaction through the influence of disturbing noise.* * James, William, op. cit., pp. 427-432. “ Under this head, the shortening of reaction-time, there is a good deal to be said of attention’s effects. Since Wundt has probably worked over the subject more thoroughly than any other investigator and made it peculiarly his own, what follows had better, as far as possible, be in his words. ‘ I made experiments in which the principal impression, or signal for reaction, was a bell-stroke whose strength could be graduated by a spring against the hammer with a movable counterpoise. Each set of observations comprised two series, in one of which the bell-stroke was registered in the ordinary way, whilst in the other a toothed wheel belonging to the chronometric apparatus made during the entire experiment a steady noise against a metal spring. In one-half of the latter series (A) the bell-stroke was only moderately strong, so that the accompanying noise diminished it considerably, without, however, making it indistinguishable. In the other half (B) the bell-sound was so loud as to be heard with perfect distinctness above the noise. Mean A (Bell-stroke moderate) B (Bell-stroke loud)

Maximum M inim um

No of Experiments

0.189

0.244

0.156

21

[W ith noise-----

0.313

0.499

0.183

16

( Without noise

0.158

0.206

0.133

20

{ With noise-----

0.203

0.295

0.140

19

f Without noise

'Since, in these experiments, the sound B even with noise made a considerably stronger impression than the sound A without, we must see in the figures a direct influence of the disturbing noise on the process of reaction. This influence is freed from mixture with other factors when the momentary stimulus and the concomitant disturbance appeal to different senses. I chose, to test this, sight and hearing. The momentary signal was an induction-spark leaping from one platinum point to another against a dark background. The steady stimulation was the noise above described. Spark Mean Without n o i s e . . . . 0.222 With n o is e ...........0.300

M axim um 0.284 0.390

Minimum 0.158 0.250

No. of Experiments

20 18

‘When one reflects that in the experiments with one and the same sense the relative intensity of the signal is always depressed (which by itself is a retarding condition) the amount of retardation in these last observations makes it probable that the disturbing influence upon attention is greater when the stimuli are disparate than when they belong to the same sense. One does not, in fact, find it particularly hard to register immediately, when the bell rings in the midst of the noise; but when the spark is the signal one has the feeling of being coerced, as one turns away from the noise towards i t / ” (Wundt. Physiol. Psych., 2nd ed. II, pp. 241-5.)

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THE NEW STRAIN IN INDUSTRY

Thus, noise not only distracts attention but necessitates a greater exertion of intensity or conscious application, thereby hastening the onset of fatigue of the attention. A quite uncounted strain upon this easily fatigued faculty results among industrial workers, such as girl machine operators, when the deafening intermittent roar of highly speeded machinery adds its quota to the tax of a long day's work. The roar is not even continuous enough to sink into monotony. With each stoppage and starting of a machine, it bursts out irregularly. The subject of noise in industrial establishments is usually dismissed witn the remark that the workers “ get used to it," and doubtless, in mar / occupations, the workers themselves are scarcely, or not at all, conscious of any increased application on their part, due to the noise. But, in the main, the process of getting used to it involves precisely that increased intensity of nervous effort, that “ feeling of being coerced," of which Wundt speaks in the laboratory experiments, and which, as we have seen, is most favorable for the approach of exhaustion.

7i

29

FATIGUE AND EFFICIENCY

7.

PIECE-WORK

Another enemy of the physiological tempo lies in the abuse of the piece-work system. Here we must preface our physiological objections to the abuse of a system, by realizing the inherent value of the system itself, properly managed. Briefly, piece-work presupposes a naturally varying rate of work and output among individuals, according to which each worker is paid. Obviously, this should be the most just way to allow for the play of natural talents. Increased effort or skill brings its immediate reward, and the best worker is the best paid. In highly organized trades, where the piece-work system has been minutely worked out, as in the great shoe industry, neither workers nor employers would for a moment consider returning to a time basis, where individuals are paid alike by the hour. In criticising the piece-rates, therefore, we are dealing with an entrenched practice, and criticism must attack not the system, but its flagrant abuses. These, unfortunately, are common and widespread, especially among workingwomen in poorly organized trades, where no collective bargaining protects individuals from pressure. In such occupations, of which the ramified needle and clothing trades are the best examples, piece-work develops chiefly into a system of “ speeding up” the workers in both machine and hand work. The workers are spurred to a feverish intensity. They apply themselves hectically. It is almost inevitable that the most 82

30

THE NEW STRAIN IN INDUSTRY

rapid workers should be so-caUed “ pace-makers” and set the rhythm for all the other workers. For pay is usually adjusted to the rate of the quickest workers, and in order to earn a fair wage, all the others must keep up as near to them as possible. Thus, if a quick girl can stitch ten dozen pieces of white underwear in a day, she can earn $1.50 at the rate of 15 cents per uozen. Another girl can at her natural pace stitch no more than six dozen in one day. But since she would earn only 90 cents a day at the same rate of pay, she drives herself feverishly to greater exertion. Piece-work, then, means working watch in hand. When every minute means loss of an already meager wage, the incentive to spurt is irresistible. Many employers contend that unless workers have such incentives, or a personal stake in working steadily, they tend to slacken and are indifferent to the amount of their output so long as wages are assured. The workers, on the other hand, return that in piece-work, even the utmost speed does not assure them of their wages, since the piece-work price is often cut when the rapid workers are thought to be earning too much in one day. The rate per piece is lowered. Then the same speed is required to earn the lower wage.* Another hardship in piece-work of which the workers justly complain and which adds greatly to the nervous tax of any occupation is due to the extraordinarily rapid changes of fashion. Thus, for example, just when a girl has become proficient enough to earn a fair wage at piece-rates in tucking women's shirtwaists, the tucks go out of fashion, and a new kind of stitching is required. Even the skilled worker is a novice at first, and cannot for some time equal the speed she had acquired by practice at her former work. Yet the manufacturer, in fixing piece-rates, rarely makes allowance for such sudden freaks of fashion, and the hardship of the inevitable changes falls on the one least able to support it, the worker. * For a striking example of the abuse of the piece-work system in the manufacture of electric lamp bulbs, see Report on Condition of Woman and Child Wage-Earners in the United States, Vol. I ll, p. 480. Senate Document No. 645, 61st Congress, 2nd Session, 1911.

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FATIGUE AND EFFICIENCY

Her wage practically is cut and her work intensified by every shift of fashion. Thus, though the piece-work system is sound in theory and works admirably in highly organized trades where collective agreements assure the workers fair, fixed rates, it fails among the most helpless workers who most need to be protected from over-pressure and the inroads of fatigue. With them it almost inevitably breeds a spirit of permanent “ rush” in work, and to that extent it is physiologically dangerous: “ the most pernicious thing that could be devised to weaken what, for a better term, might be described as the dynamic efficiency of the nervous system,”* writes a physician familiar with the effects of unregulated piece-rates among garment workers. 8. OVERTIME

The factors which we selected as typical of the new strain in industry are all aggravated and intensified by the system of overtime evening work, to which we have already made passing reference. Overtime means that after the regular day's work is done, evening work is required in addition. Overtime is an elastic term. In its extremest forms, reported in printing and binding establishments, it lengthens the workday to twenty-four hours in one stretch. In less extreme degree, overtime is worked during the fall months until eight or nine or ten o'clock each evening in factories which supply the Christmas market; in paper box making; in the manufacture of innumerable articles of women's wear— from lace collars to Japanese kimonos; in leather and jewelry work; in making the cheaper and more lasting candies, and in many other occupations. Indeed, overtime is common to almost all industries and * Schwab, Dr. Sidney I. (Professor of Nervous and Mental Diseases, St. Louis University): Neurasthenia among Garment Workers. American Labor Legislation Review, Vol. I, No. I, p. 27. (January, 1911.)

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THE NEW STRAIN IN INDUSTRY

is prevalent in every industrial center, to a degree wholly unknown to most persons. No more arresting fact emerges from the comprehensive study of wage-earning women and children made by the federal government, than the almost incredible length and duration of this form of extra employment. People sr.ak habitually, and labor statistics usually treat of, the so-called “ normal” hours of labor, dismissing overtime as an insignificant and merely occasional side issue. Overtime is regarded as a sort of temporary emergency, similar to many other of life's stresses which people weather without permanent injury, thanks to their reserve strength. But, in fact, overtime is an integral part of the workers' lives, persisting not only for days at a time but for weeks and months; not occasionally lengthening the day's work, but during a large part of the year straining health and endurance to the utmost. Thus, in the recent federal investigation of wage-earning women and children, agents of the government reported the normal hours of work, in miscellaneous manufactures, as 55yi in New York, 56.4 in Chicago, 53.3 in Philadelphia, 53 in Baltimore. But the average duration of overtime of selected workers in those cities, during 1907-08, was 17.3 weeks or over four months in New York, 13}4 weeks or more than three months in Chicago, 16.6 weeks or again over four months in Philadelphia, 13 weeks in Baltimore.* In one printing establishment in New York City, girls were employed once and sometimes twice a week, during a period of sixteen to twentysix weeks, for 16J4, 20^> 22yi, and 24>^ continuous hours.f These longest days of overtime work are reported in New York binderies. But in a special investigation of Chicago box factories the weeks of overtime persisted longest.{ * Report on Condition of Woman and Child Wage-Earners in the United States, Vol. V, pp. 204, 208, 2 1 1 , 213. Senate Document No. 645. 61st Congress, 2 nd Session. 1910. t Ibid., p. 205. t Bulletin of the U. S. Bureau of Labor No. 91, Nov., 1910. Working Hours of Wage-earning Women in Chicago, pp. 875-880.

85

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FATIGUE AND EFFICIENCY

Eleven box factories employing 1010 workers were investigated. Their average duration of overtime was fifteen weeks in the year; one factory reported overtime extending over thirty-seven weeks in the year; that is, more than nine months * In this case, the so-called “ normal” hours were worked only three months; the supposedly extra “ overtime hours” were worked regularly more than nine months in the year,—a reductio ad absurdum of the whole matter. Yet this is not merely an eccentricity of nomenclature. It is a trick of psychology; a not unfair example of our habitual mental attitude towards the custom of overtime, accepting the shorter hours as normal and habitual, dismissing from mind the excessive hours no matter how long they may persist, as exceptional, under the head of “overtime.” Obviously, when overtime extends over such hours as those quoted here, it shares all the dangers inherent in regular night work. Upon these dangers we shall dwell subsequently, in discussing more fully the phenomenon of all night work. Here it suffices to draw attention to the fact that beside the dangers to health, there are inevitably moral dangers also, potential in all employment of women after dark. The return home at late night or early morning hours is fraught with the peril of insult if not of attack; association with men employes at night, and during the midnight recess in establishments running all night long, presents special temptation; women who live away from home cannot easily return to reputable living places late at night. Such hardships are incurred by the worker kept for overtime as well as by the all night worker. But physiologically considered, overtime sins against health in a way peculiar to itself. It means that the elements which make up industrial stress—speed, complexity, monotony, and the * In this firm, the normal hours were fifty-nine in one week, the "long d ay” being ten hours; in the busy season (thirty-seven weeks) the “ long d a y ” was thirteen and one-half hours, and the week was made up as follows: “ One nine-hour day, three thirteen and one-half-hour days and two ten-hour days, making the total number of hours for the six-day week sixty-nine and one-half.” Op. cit., p. 877.

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THE NEW STRAIN IN INDUSTRY

reSf-_must be endured by an organism which has presumably already reached its limits. The essential injury of overtime is due to what we have seen graphically proved with the ergograph: that effort increases with fatigue; that work continued after fatigue has set in requires so much more subsequent time for recuperation. But during a “ rush” or overtime season such time for recuperation is necessarily lacking. The girl who is kept in the great department stores until ten or eleven or twelve o'clock at night during one or two frenzied weeks before the holiday which heralds the reign of Peace; the girl who works at fever heat all evening stitching women's shirtwaists in January for the spring trade, is not relieved from the necessity of reporting for work at seven or eight o'clock the next morning. She comes to work unrepaired, and with each day of overtime, accumulated fatigue necessarily grows. One of the least known and most straining forms of overtime, for which Christmas is responsible, occurs in the auditing department of the great stores. One of the largest establishments in New York City, typical of the best stores, closes its doors to shoppers throughout the winter at six o'clock. But the girls who serve behind the counters may leave every night at their regular hour though girls upstairs in the clerical department are kept until nine o'clock in the evening during more than two months, that is, from December 1 until February. They usually receive no extra pay for the three extra daily hours of work, but have an allowance of 35 cents each evening for supper money. In theory, the requirement of overtime is supposed to be balanced by the slack period which often follows. A short period of over-exertion is assumed to be compensated by a subsequent let-up. But the slack period which often follows overtime does not give the supposed opportunity for leisure and recuperation. It is itself a season of deprivation. For slack work means slack pay, with a consequent loss rather than gain in opportunities for recuperation. But deeper than this objection to the alternation of 87

35

FATIGUE AND EFFICIENCY

overwork and idleness, is the physiological objection. During overtime, leisure and rest are cut down at the very same time that heavier and longer demands are made upon the human organism. It is practically inevitable that the metabolic balance should be thrown out of gear. Regular seasonal overtime in such occupations as those cited above, leaves the worker with too great a physiological deficit. There is no rebound, or an infinitely slow one when our elastic capacities have been too tensely stretched. It takes much more time, rest, repair than the working girl can possibly afford to make good such metabolic losses. Compensation —off-time—comes too late. As we know instinctively, and as we have seen diagrammatically proved in the laboratory, the essential thing in rest is the time at which it comes. Rest postponed is rest more-than-proportionally deprived of virtue. Fatigue let run is a debt to be paid at compound interest. Maggiora showed that after a doubled task, muscle requires not double but four times as long a rest for recuperation, and a similar need for more-than-proportionally increased rest after excessive work is true also of our other tissues, and of our organism in its totality. No one need therefore be surprised to learn that after a period of overtime work, a marked growth of many minor ailments has been found where there has been medical examination of working girls and women. A recent report of the British Chief Inspector of Factories quotes a striking example of this.* In six large tobacco factories, physicians appointed by the firms reported an increase of from onethird to one-half in the number of workers coming to them for treatment after continuous overtime work. No special diseases were found but, as might be expected, aggravated cases of the ordinary ailments, such as indigestion, anaemia, heavy colds in winter, gastric disorders in summer. This was in a trade considered not in itself unhealthy by the physicians quoted, and where overtime was limited by the * British Sessional Papers, Vol. X, Appendix II, 1907, pp. 253-254.



36

THE NEW STRAIN IN INDUSTRY

British law so that the total amount of work done could not exceed ten and one-half hours in one day. This is only one example of many which might be quoted. Year after year the British factory inspectors have registered their disapproval of overtime on physical grounds, and have denounced its physical effects. “ Nothing short of a public scandal,” “ inexcusable,” “ outrageous,” are some of the epithets repeatedly used. In France, the “ veillee” or evening overtime work, especially in dressmaking establishments, comes in for the same denunciation. A German physician, Dr. Emil Roth, of Potsdam, expresses himself similarly in an address which combines scientific thoroughness with a first hand knowledge of industry. His observation inclines him to believe that the strain of seasonal overwork upon the health of working women in stores and factories is never compensated, but encroaches steadily upon the worker's total health and endurance, permanently lowering their levels.* ♦Roth, Dr. Emil: Ermiidung durch Berufsarbeit.

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37

Op. cit.» p. 610.

IV

SOME SPECIFIC STUDIES OF PHYSICAL OVERSTRAIN IN INDUSTRY HUS a rapid glance at some actual conditions in diverse occupations such as the telephone service, the great woman-employing needle and textile and shoe trades, and the canneries, throws some light upon the new strain of industry. In all these occupations work has increased its demands upon human energies. We turn next to learn some of the physical effects upon the workers, so far as these have been observed and recorded. As concerns the past, we have abundant testimony on the fruits of overwork, not only regarding those who have themselves been bound to exacting tasks, but regarding their children and the communities in which their lives were spent. This kind of testimony, to which we shall often have occasion to refer in this study, is found in the accumulated official and unofficial reports of the inspectors and physicians who have had daily to observe the conditions of labor at first hand, and whose unconscious unanimity gives to their evidence, as we have pointed out, a strangely heightened power. The individual observer may exaggerate or minimize or strain the facts. But no one can read without a deep sense of its total truth, the reiterated evidence of generations of such observers, in many countries, writing independently but agreeing fundamentally in their observations and diagnoses.* There is a peculiar significance in this kind of testimony. It is the accumulated experience of mankind and has an authority due to its very iterations. This is the power and * See Part 11 of this volume.

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STUDIES OF PHYSICAL OVERSTRAIN IN INDUSTRY

the moving appeal of history, that it gives us, as fiction rarely can, precisely the cumulative experiences, the persistent realities of our common lot. A truth that has been a hundred years in the forging is, in so far forth, just so much the truer. It is not a mathematical formula, proved once for all and immutable. The truths of history gain in meaning and power under changed guises, coming down to the children of a later age with a fuller and more significant content. This is as true of industrial history as of any other; and hence the industrial experience of the past should enable us more intelligently to estimate our own difficulties and performances. 1.

INFANT MORTALITY

According to the testimony of many observers, the industrial overstrain of women has commonly reacted in three visible ways: in a heightened infant mortality, a lowered birth rate, and an impaired second generation. We can readily see that many factors besides overwork contribute to the greater mortality of infants among the working class. Probably improper feeding holds the first place amongst causes, and overcrowding, with all its train of ills such as foul air, dirt, and darkness, is an important item. But the relation, direct and indirect, between women's industrial work and a high death rate among infants is well-established. Few exact and detailed studies of this relationship have been made in our country, but it has been pointed out that infant mortality is highest in industrial communities where mainly women are employed in factories. Thus an abnormally high death rate of infants is asserted to exist in two cotton mill towns of New England,—Fall River, Massachusetts, and Biddeford, Maine.* The latest government statistics also show the abnormally high infant mortality in textile towns. In 1910, in selected * Prevention of Infant Mortality. Being the papers and discussions of a Conference on Prevention of Infant Mortality, New Haven, Conn., 1909, p. 37. Under the Auspices of the American Academy of Medicine.

*

39

FATIGUE AND EFFICIENCY

cities, the number of deaths of infants under one year, per 100 deaths at all ages, was as follows:* B oston..................................................... .19 C hicago.....................................................21 New York C ity ......................................21 Biddeford............................................... .27 Lowell........................................................29 L aw rence............................................... .35 H o ly o k e ................................................. .35 Fall R iv e r ........................... ..................39

In 1910 the number of deaths of infants under one year, per 1000 births, in selected cities was as follows :f New York C ity .................................. .125 B oston................................................... .126 Philadelphia..........................................138 L aw rence............................................. .167 New Bedford........................................177 H o ly o k e ............................................... ..213 L ow eil.....................................................231

More detailed studies abroad have sought to show the relation between a high mortality of young children and the industrial employment of women. The death rate of infants is said to increase in proportion to the increase in the number of women at work. Dr. Newman in his standard workt devotes material attention to this subject as it affects the death rate in Great Britain. He compares eight towns chosen for their low percentage of women at work and eight towns chosen for their high percentage of women engaged in the textile trades, between the ages of fifteen and thirty-five years, that is, during the ages of reproductive potentiality. In the non-textile towns, the average yearly infant mortality during the decennium, 1896 to 1905, was 150 per 1,000 infants. * Bureau of the Census. Department of Commerce and Labor. Bulletin 109. Mortality Statistics, 1910, p. 14. Washington, 1912. f Ibid., p. 18. j Newman, George, M.D (Lecturer on Public Health at St. Bartholomew’s Hospital, London; Medical Officer of Health of Metropolitan Borough of Finsbury): Infant Mortality, p. 105. New York, E. P. Dutton and Co., 1907.

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STUDIES OF PHYSICAL OVERSTRAIN IN INDUSTRY A V E R A G E INFANT MORTALITY RATE IN SOME

TEXTILE t o w n s ,

ENGLISH NON-

1896-1905 P e r c e n t a g e o f O c c u p ie d W o m e n , a g e s 15 t o 35.

Town Infant Mortality Rate, 1896-1905

Total

Married or Widowed

L in co ln .................... South Shields......... N ew ton .................... C a r d iff.................... Barrow-in-Furness B u r to n ....................

166 160 157 155 153 147 144 119

55.1 59.4 63.3 53.8 63.6 62.6 57.9 60.5

 5.0 3.2 3.0

A v e ra g e.............

150

59.5

S u n d e r la n d .............. S w a n s e n ...................

2.6 3.8 2.9 

3.1

In the textile towns, on the other hand, the average infant mortality was 182 per 1,000 infants, rising as high as 208.* INFANT MORTALITY RATE IN SOME ENGLISH TEXTILE TOWNS,

1896-1905 P e r c e n t a g e o f O c c u p ie d W o m e n , a g e s 15 t o 35

Town Infant M ortality Rate, 1896-1905

Total

Married or Widowed

B u r n le y .................................. P r e s t o n .................................. B la c k b u rn ............................. N o t t i n g h a m ........................ L e ic e s te r ............................... O ld h a m .................................. B o lto n .................................... B u r y ......................................

208 208 183 180 175 170 166 164

90.9 84.4 91.8 84.6 87.6 87.3 87.4 88.9

59.7 50.5 63.9 27.5 41.6 33.4 24.7 44.8

A v e r a g e .............................

182

88.4

43.2

* Newman, op. cit., p. 106.

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FATIGUE AND EFFICIENCY

From these tables it appears that the percentage of workingwomen between fifteen and thirty-five years in the high mortality textile towns was 28.9 per cent higher than in the low mortality towns; the percentage of married workingwomen was 40 per cent more than in the low mortality towns. Another careful study extending over twenty years was made by the medical officer of health of Kearsley, a Lancashire town of about 10,000 inhabitants. The death rate of Kearsley remained stationary between 1885 and 1904, but the infant death rate rose in the same period from 143 to 229. During the same period the birth rate fell from 39 to 27 per 1,000. These striking figures are attributed to the fact that the town has developed into a manufacturing district of many mills, where large numbers of women are employed. Again, in Preston, the increase in infant mortality was so marked between 1881 and 1900 that a committee was appointed to study the matter. While the general death rate sank from 24.73 to 20.80, the number of babies who died rose from 208 to 236 per 1,000 infants. The committee reported* that in its opinion the causes of this increase were the employment of women in mills and the consequent enforced neglect of babies at home. Dr. Newman sums up the whole matter by saying “ It is the employment of women from girlhood all through married life, and through the period of child-bearing —the continual stress and strain of the work and hours and general conditions prevailing in women's labour—that is exerting its baneful influence on the individual and on the home.” If the death rate of infants is so high where women are employed in the protected British textile trade, with its ten-hour day and fifty-five and a half hour week en* Report on Health of Preston, 1902, pp. 10-12. p. 136.) t Newman, op. c i t , p. 136.

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(Quoted by Newman,

STUDIES OF PHYSICAL OVERSTRAIN IN IND U STR Y

forced, we may well ask what are likely to be the effects of the stress and strain of such American industries as we have examined above, upon child bearing and infant mortality. 2.

LOW BIRTH RATE

It is true that women’s, industrial work probably affects the infant death rate less here than abroad owing to the far smaller proportion of married women in industry. But a point of equal importance is the effect of industrial overstrain in lowering the birth rate itself. It is not only the work of women after marriage, or just before confinement, which most gravely affects childbirth. The pressure of industry has not only in innumerable cases marred, but often destroyed altogether that immemorial function of women, the center of the tenderest associations of our race. Medical authorities assert that the strain of continuous standing and overwork during girlhood, such as many young women endure in stores as well as factories,'is responsible for unmistakable pelvic and uterine disease and sometimes subsequent sterility after marriage. The most impressive evidence on this topic was brought out in England, in successive efforts to establish by law a shorter workday in mercantile establishments. The reports of select committees (several of which sat between 1886 and 1901 and heard the highest medical testimony regarding the effects of work in stores), dwell insistently upon the injuries from the long hours and the continuous standing upon the generative organs, in girlhood as well as after marriage. From among a large number of medical statements we may cite one by Dr. Grigg, out-patient physician for the diseases of women at Westminster Hospital, senior physician to the Queen Charlotte Lying-in Hospital, and connected with the Victoria Hospital for children. This physician was questioned about the injuries of overwork to the health of girls and women employed in stores, “ shop-girl assistants” 95

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FATIGUE AND EFFICIENCY

as they are called in England. hours :*

He said of the prolonged

“ They have a very grave effect upon the generative organs of women, entailing a great deal of suffering, and also injuring a very large body of them permanently, setting up inflammation in the pelvis in connection with these organs. “ If the matter could be gone into carefully, I think the Committee would be perfectly surprised to find what a large number of these women are rendered sterile in consequence of these prolonged hours. “ I think it must be acknowledged sterility is often due to this inflammatory mischief arising around the generative organs. 1 believe that it is one of the greatest evils attached to these prolonged hours. I have seen many cases in families where certain members who have pursued the calling of shop-girl assistants have been sterile, while other members of the family have borne children. 1 know of one case where tour members of a family who were shop girls were sterile and two other girls, not shop girls, have borne children; and I have known other cases in which this has occurred. . . . I have patients come to me from all parts of London. It appears to be a most common condition." Not only do the children of mothers at work or overstrained during girlhood die in greater numbers, but the birth rate is lower. The most detailed studies on this subject appear to have been made by Professor Ugo Broggi, who has published extensive figures on the fecundity of working women. He statesf that of 172,365 Italian working women between the ages of fifteen and fifty-four, who were employed in industrial occupations, the average child-bearing co-efficient was only 45 per thousand or about one-third of the general fertility of Italian women (120 per thousand). ♦British Sessional Papers, Vol. X II, 1895. Report of Select Committee on Shops (Early Closing Bill), pp. 219-220. Witness, Dr. W Chapman Grigg. See also Part 11 of this volume, pp. 135-142. f Zeitschrift der Socialen Wissenschaft, Bd. VIII, Nr. 10, 1905. Die Fruchtbarkeit der selbstarbeitenden und den arbeitenden Standen angehorigen Frauen, p. 663.

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STUDIES OF PHYSICAL OVERSTRAIN IN IN D U STR Y

3.

RACE DEGENERATIO N

Besides a high death rate and a low birth rate, subnormalities of size and weight often characterize the children born of working mothers. Thus are they handicapped at the start and the misfortunes of the parents are visited upon the next generation. Such racial deterioration, due to the extremest overwork, was unmistakably evident in England after the first period of unchecked industrial exploitation. Between 1830 and 1840 the intolerable overwork of two generations achieved its result. The accounts of eye-witnesses, horrified by the appearance of the factory population, agree that there was a visible decline in the stature and strength as well as in the morals of the manufacturing shires. “ The factory population appear to have become a distinct race, that was known at a glance, so defined had the effects of overwork and unhealthy dwellings become upon the physical appearance and condition of the people.”* “ Competition far from regulation had in half a century produced a race of pale, stunted, and emaciated creatures, irregular in their lives and dissolute in their habits. Their case appeared so desperate that for those who believed in laissez faire, 'the only hope/ as Harriet Martineau confessed, *seems to be that the race will die out in two or three generations/ Home life was totally lost; young children, girls, and women were all pressed into the service; the very preservation of the race was threatened. In more recent times, the existence of racial deterioration, due in large part to overwork and exhaustion, has been interestingly corroborated by the statistics of military service. In various countries, especially where such service is compulsory, it has been found that the proportion of young

46.

* British Sessional Papers, 1875, Vol. XVI, p. 23. See also Part 11 of this volume, pp. 276-286. f The Case for the Factory Acts. Edited by Mrs. Sidney Webb. London, Grant Richards, 1901.

45

p.

FATIGUE AND EFFICIENCY

men rejected for physical unfitness is far higher in industrial communities than in others. The great physiologist Mosso drew attention to this fact regarding the exploited carusi or sulphur workers of Sicily. He had been sent to the island as a young army surgeon, and he first realized there, with a shock of horror, the “ ruin which the exhaustion of fatigue brings about in man” when he saw the evidences of his countrymen's degeneration in the province of Caltanisetta, in the midst of the loveliest natural scenery in the world. Such was the physical condition of these people that in the four years between 1881 and 1884, out of 3,672 sulphur workers who presented themselves at the recruiting offices, only 203 were declared fit for service.* At about the same time, in 1886, Dr. Schuler, the eminent Swiss factory inspector, reported f to a congress of G^iinan scientists and physicians at Strassburg, that the factory work of young persons in Switzerland was attracting marked attention owing to the shocking statistics of recruiting offices. Dr. Schuler stated that in rural districts, where there were few mills, only 14.3 per cent to 18.9 per cent of the recruits were found unfit for immediate service and were temporarily rejected (that is, had their terms of service postponed for two years). In factory districts, 19.7 to 23.3 per cent of the young men were found unfit for service and were temporarily rejected. It had been assumed that the higher standard of living obtained through the increased wages of factory workers would compensate for the hardships of factory life. But these expectations were not fulfilled. Later investigations showed that in the canton of Zug, for instance, only 37 per cent of cotton mill operatives were physically fit for service, while in the same canton among farm laborers 49 per cent were fit, and among artisans from 47 * Mosso, op. cit. English translation, pp. 158-159. t Deutsche Vierteljahresschrift fur ofFentliche Gesundheitspflege, Vol. XVI11, 1880, pp. 134-135. 58 Kongress der Deutschen Naturforscher und Arzte. Schuler, Dr. F.: Die tjberbiirdung der Arbeiterinnen und Kinder in Fabriken.

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STUDIES OF PHYSICAL OVERSTRAIN IN IN D U STR Y

to 83 per cent were fit. In another canton, Thurgau, 34 to 39 per cent of factory workers were rejected as against 12 to 23 per cent of non-factory workers. A more recent study of German workingmen gives similar figures. It is stated by a German physician,* on the authority of a local magistrate who had long been studying the subject, that in a district where the manufacturing of nails had long been carried on, only 26 per cent of the workers liable or military service had been found physically fit. In anotl r district, where buckles were extensively manufactured, only 21 per cent of the young men were fit. These very unfavorable figures are said to be due to long hours and great monotony of work requiring the constant repetition of mechanical movements. “ The avoidance of such dangers to the future defense of the country,” says Dr. Ascher, “ lies in shorter hours of work, and exercise as a preventive of some of these physical defects.” The report of the French factory inspectors in 1900 on the question of night work also dwells upon the physical deterioration observed at the recruiting offices. They state that in industrial centers the proportion of rejections on account of physical unfitness has been as high as 50 per cent while in the country it is only about 25 per cent.f Doubtless many incidents of city life such as overcrowding and unsanitary housing help to swell the numbers of * Handbuch der Arbeiterwohlfahrt. Edited by Dr. Otto Dammer. Bd. I. Ascher, Dr.: Beschadigungen der Arbeiter bei der Arbeit, p. 494. Stuttgart, Enke, 1902. f Rapports p resents k M. le Ministre de Commerce, de 1’Industrie, des Postes et des T£I6graphes, par les Inspecteurs du Travail. La Question de I’Interdiction du Travail de Nuit, p. 73. Paris, Imprimerie Nationale, 1900. See also, Report of the Eighth International Congress of Hygiene and Demography, Vol. VII, Section VII, Budapest, 1894. Donath, Dr. Julius (Univ. of Budapest): Der Physische Riickgang der Bevolkerung in den Modernen Culturstaaten, mit besonderer Riicksicht auf OesterreichUngarn. Tenth International Congress of Hygiene and Demography, Paris, 1900. Vaillant, M. Edouard, (M. R. C. S. England): Legislation et Reglementation du Travail au point de Vue de l’Hygiene. British Sessional Papers, 1904, Vol. X X X II. Report of the InterDepartmental Committee on Physical Deterioration, Vols. I, II, and III.

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FATIGUE AND EFFICIENCY

physically degenerate workingmen disclosed by the military statistics. But the most careful students of the subject appear to lay chief stress upon the “ increasing intensity of production and industrial over-pressure” as the most prominent cause of physical deterioration among the candidates examined. 4. LACK OF INFORMATION IN THE U N IT E D STATES

Our brief survey of some great modern industries has shown that they are increasing their demands upon human energies. The effect upon the workers is bound to be accordingly complicated. What are those effects today? Have we reliable evidence on the results of the speed, complexity, and monotony in industry which we have been considering? It is undeniable that there is a baffling lack of exact knowledge on this point in the United States. Working people who have become ill or worn out at their trades do not congregate in resorts or places where they can be recognized as victims of overpressure. They are dispersed, lost in the masses of our population. When some of them emerge, from a longer or shorter struggle for existence, into public sight,—seeking employment or aid from relief societies, in hospitals or clinics, or more tragically, in the criminal courts,—the original cause of their breakdown in health and efficiency is often entirely obscure. Even the trade unions have, as yet, kept little track of the physical condition of their members. On the whole, all that we can learn from union workers are individual stories of breakdown and overstrain. The new interest of the printers in the disease which is thinning their ranks, tuberculosis, and the results of their short campaign show what a force the unions may sometime be in conserving health. But as yet they have few exact or constructive data. The social settlements and social workers have not much more. Something, it is true, we can learn as to the effect of industrial strain, from the personal observations of persons ioo

48

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u–žG ›G šG –G œ•œšœˆ“G •›Œ™Œš›G –™G –œ™G š—ŒŠˆ“G •˜œ™ SG ›–G•‹G ›ˆ›G ›ŒšŒG ”–š›G Š–””–•G ‹šŒˆšŒšG –G—ˆ›Œ•›šG •G ›ŒG nŒ™”ˆ•G •šœ™ˆ•ŠŒG šˆ•›ˆ™ˆG O•–›G •Š“œ‹•ŽG ›œ‰Œ™Šœ“–ššPG žŒ™ŒG –œ•‹G ›–G ‰ŒG —™ŒŠšŒ“ G ›ŒG •Œ™–œšG ‹š–™‹Œ™šG š—™•Ž•ŽG ™–”G•‹œš›™ˆ“G š›™ˆ•Gˆ•‹G–Œ™—™Œššœ™ŒU p•G ˆG ›–œŽ›œ“G ˆ™›Š“ŒSG ›ž–G — šŠˆ•šG –™”Œ™“ G –G ›ŒG iŒŒ“›¡Gzˆ•›ˆ™œ”Gž™›ŒGaQ ˈ {ŒG•Š™ŒˆšŒG–G ‹šŒˆšŒšG–G ›ŒG•Œ™–œšGš š›Œ”Gˆ”–•ŽG ž–™’•ŽG—Œ–—“ŒG•G›ŒG“ˆš›G‹ŒŠˆ‹ŒGšGˆGˆŠ›G›ˆ›GšG•–žG™”“ G Œš›ˆ‰“šŒ‹G ‰ G ŒŸ›Œ•šŒG ˆ•‹G Šˆ™Œœ““ G Š–•‹œŠ›Œ‹G š›ˆ›š›Šˆ“G •˜œ™ UG {šGšG”–š›G Š“Œˆ™“ GŒ‹Œ•›G •G™Œš—ŒŠ›G›–G›ŒG—š ³ Š–šŒšbG ‰œ›G›Œ™ŒGšGˆ“š–G•–G‹–œ‰›SG•G›ŒG”•‹šG–G›ŒG”–š›G •–™”Œ‹Gˆœ›–™›ŒšSG›ˆ›G •Œœ™ˆš›Œ•ˆˁžŠSG›–œŽG “ŒššG ”Œ•ˆŠ•ŽG›ˆ•G •šˆ•› G›–G›ŒGŒŠŒ•Š Gˆ•‹G “ˆ‰–™GŠˆ—ˆŠ› G –G ›ŒG ž–™’Œ™G šG š›““G šœŠŒ•›“ G šŒ™–œšG •G ›šG ™Œš—ŒŠ›ˁšG ˆ“š–Gš›Œˆ‹“ G•Š™Œˆš•ŽG•G™Œ˜œŒ•Š Gˆ•‹G•GšŒŒ™› UG UG UG UG {–œŽSG–™Gš–”ŒG Œˆ™šSG•–›G–•“ G›ŒG“ˆ› SG‰œ›Gˆ“š–G›ŒGŠŒG ”Œ‹Šˆ“G ŒŸ—Œ™›šG –•G •Œœ™ˆš›Œ•ˆSG ˆšG s–žŒ•Œ“‹G ˆ•‹G i•šTG žˆ•ŽŒ™SG –Œ™“––’Œ‹G ›ŒG ž–™’•ŽG Š“ˆššŒšG •G ™Œ“ˆ›–•G ›–G ›šG ‹šŒˆšŒSG›šGˆ›››œ‹ŒGšG•–žG™ˆ‹Šˆ““ GŠˆ•ŽŒ‹UG v•Gˆ““Gš‹ŒšS QG kŒœ›šŠŒG tŒ‹¡•šŠŒG ~–ŠŒ•šŠ™›SG Y\UG tˆ SG X`W\SG —UG _YWUG k™UG wUG sŒœ‰œšŠŒ™G œUG k™UG ~UG i‰™–žŠ¡aG kŒG uŒœ™ˆš›Œ•ŒG •G h™‰Œ›Œ™’™ŒšŒ•U

103

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•G›ŒG Š“•ŠšGˆ•‹G— šŠˆ•šNG–ŠŒšSGˆ•‹G‰ G›ŒG”ˆ•ˆŽŒ™šG–G ›ŒG “ˆ™ŽŒG •šœ™ˆ•ŠŒG œ•‹šSG —™––šG –G ›ŒG Œ•–™”–œšG •Š™ŒˆšŒG –G •Œœ™ˆš›Œ•ˆG ˆšG ˆG ŠˆœšŒG –G •ˆ‰“› G ›–G ž–™’G ˆ™ŒG ‰Œ•ŽG —™ŒšŒ•›Œ‹UN p•GˆG™ŒŠŒ•›G ™Œ—–™›SG ›ŒG — šŠˆ•T•TŠŒG–G›ŒG iŒŒ“›¡G zˆ•›ˆ™œ”Gšˆ šaQ ˈ p•G ›ŒG Š–œ™šŒG –G ›ŒG  Œˆ™SG X_X\G ”Œ•G ˆ•‹G _WZGž–”Œ•G žŒ™ŒG›™Œˆ›Œ‹UG U U U ˈ vG›ŒG X_X\G ”ˆ“ŒG —ˆ›Œ•›šGž–GžŒ™ŒG‹šŠˆ™ŽŒ‹SG XYW]SG •G ™–œ•‹G •œ”‰Œ™šG ˆ“”–š›G ^WG —Œ™G ŠŒ•›SG žŒ™ŒG •Œ™–œšG ŠˆšŒšUG ~“ŒG•Gš–”ŒG›ŒGŒŸŠ›•ŽGŠˆœšŒG–G›ŒG‰™Œˆ’‹–ž•G”Ž›G‰ŒG ˆ™–œš“ G ŒŸ—“ˆ•Œ‹SG •G ‰ G ˆ™G ›ŒG “ˆ™ŽŒš›G —™–—–™›–•G –G ›G ˆ™–šŒG™–”G–Œ™š›™ˆ•G–G›Œ™G‹ˆ“ G“ˆ‰–™U ˈ vG ›ŒG Œ”ˆ“ŒG ŠˆšŒšSG ”–™ŒG ›ˆ•G –•ŒTšŒŒ•›SG –™G XY_G –G _WZSG žŒ™ŒGˆ•ˆŒ”ŠGˆ•‹G Š“–™–›ŠUG h”–•ŽG ›ŒšŒSG–•ŒTˆ“G –G ˆ““G šœŒ™Œ‹G ™–”G •Œ™ŒG š›™ˆ•G ˆ“›–œŽG –›Œ™G Š–”—“Šˆ³ ›–•šG”Ž›G‰ŒG—™ŒšŒ•›UI {ŒG šŒ™–œšG ŒŒŠ›šG œ—–•G ž–™’•ŽG Šˆ—ˆŠ› G –G ›ŒšŒG •Œ™–œšG ‹š–™‹Œ™QG InG Š–”—ˆ™š–•G ž›G –›Œ™G ‹šŒˆšŒšSG ”ˆ G ‰ŒG šŒŒ•G •G ›ŒG–““–ž•ŽGŽœ™ŒšSGŽ•ŽG›ŒGŒ•›™ŒG •œ”‰Œ™G–G ‹ˆ šG“–š›G™–”Gž–™’G–•GˆŠŠ–œ•›G–GšŠ’•ŒššU jvtwhyh{p}lG u | t ilyG vmG ~ v y r pu n G kh€zG svz{G i€G wh{plu{zG h{G illsp{G zh u p{ h y p| t Uˁ i€G kpzlhzlG nyv|wz Disease Groups

Total number of working days lost from time of cessation of work to time of discharge from Sanitarium M en

p•ŒŠ›–•šUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUU G w–š–••ŽšUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUU G tˆ“•œ›™›–•šUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUG z’•SG tœšŠ“ŒšSGq–•›šSG Œ›ŠUUUUUUUUUUUUUUUUUUUG uŒ™–œšG kš–™‹Œ™šUUUUUUUUUUUUUUUUUUUUUUUUUUUU G

]WG XSY\` YS^^ZG \SX^^G [[S`]\G

Women

Z^Z ^S_]X `Z\ Y\SW^\

k™UG s‰Œ•ˆœSG ˆššš›ˆ•›G — šŠˆ•G ˆ›G iŒŒ“›¡SG ž™›ŒšG • QG }Œ™žˆ“›œ•Žš‰Œ™Š›G ‹Œ™G sˆ•‹ŒšŒ™šŠŒ™œ•Žšˆ•š›ˆ“›G iŒ™“•G ™G‹ˆšG qˆ™G X`W`SG —UG XXYUG z”“ˆ™Gš›ˆ›š›ŠšG”ˆ G‰ŒG–œ•‹G•G›ŒG™Œ—–™›šG–G—™ŒŠŒ‹³ •ŽG Œˆ™šU ›Gl•›™ŒG›ˆ‰“ŒG •–›G ™Œ—™–‹œŠŒ‹U

104

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ˆ•G ˆ™›Š“ŒG–•G ˈGoŒˆ™›G kšŒˆšŒG ˆ”–•ŽG›ŒG~–™’•ŽG wŒ–—“ŒG–G iŒ™“•ˉ aQ ˈ p•G Š–”•ŽG ›–G ›ŒG Š“ˆššG –G Šˆ™‹ˆŠG •Œœ™–šŒšG ›G šG ›–G ‰ŒG ™Œ”ˆ™’Œ‹G ›ˆ›G •Œ™–œšG ˆŒŠ›–•šG–G›ŒG Œˆ™›G ˆ”–•ŽG iŒ™“•G ž–™’”Œ•G ˆ™ŒG Œ™ G Š–””–•SG ˆšG ”ˆ G ‰ŒG •Œ™™Œ‹G ™–”G ›ŒG ŒŸ›™ˆ–™‹•ˆ™ G—™Œˆ“Œ•ŠŒG–G•Œœ™ˆš›Œ•ˆUG U U U G p•G”–š›G –G ›ŒšŒG ŠˆšŒšG –G š”—“ŒG •Œœ™ˆš›Œ•ˆSG •Œ™–œšG ˆŒŠ›–•šG –G ›ŒG Œˆ™›G ˆ™ŒG ›ŒG ™œ“ŒUG {Œ™ŒG šG ›ŒG šŒ•šˆ›–•G –G —ˆ“—›ˆ³ ›–•šSG —ˆ•G •G ›ŒG ™ŒŽ–•G –G ›ŒG Œˆ™›SG ˆG ŒŒ“•ŽG –G Ž™Œˆ›G ˆ•ŸŒ› SG ˆ•‹G š–™›•ŒššG –G ‰™Œˆ›G ˆ›Œ™G ŒŸŒ™›–•UG zœŠG‹š³ ŒˆšŒšG ˆŒGšŒ™–œšbG”—–™›ˆ•ŠŒG–™Gž–™’Œ™šG–•GˆŠŠ–œ•›G–GŠˆ™³ ‹ˆŠGŠ–”—“Šˆ›–•U ˈ {ŒGŠˆšŒšG‹ŒšŠ™‰Œ‹Gˆ‰–ŒGˆ™ŒG“”›Œ‹G›–G›–šŒG•GžŠG ›ŒGŒˆ™›Gš ”—›–”šG–G•Œ™–œšG–™Ž•G—™ŒšŒ•›G›ŒG‹–”•ˆ›•ŽG Œˆ›œ™ŒšG ˆ•‹G žŠSG ›Œ™Œ–™ŒSG ”ˆ G ‰ŒG ™ŒŽˆ™‹Œ‹G —œ™Œ“ G ˆšG ŠˆšŒšG–GŠˆ™‹ˆŠG•Œœ™–šŒšUˉ h•–›Œ™G— šŠˆ•SG k™UG l”“G y–›G–Gw–›š‹ˆ”SGž–GˆšG ‰ŒŒ•G —™–”•Œ•›G •G ›ŒG š›œ‹ G –G ‹šŒˆšŒšG –Gž–™’•ŽG—Œ–—“ŒSG šˆ šGa ˈ o–žGˆ“ˆ™”•ŽN›ŒG•Š™ŒˆšŒG –Gˆ•ˆŒ”ˆG ˆ•‹G •Œœ™ˆš›Œ³ •ˆGˆ”–•ŽGž–™’•ŽG—Œ–—“ŒG ˆšG ‰ŒŒ•G •G ›ŒG —ˆš›G ›Œ•G  Œˆ™šGšG š–ž•G‰ G›ŒG™ŒŠ–™‹šG–G›ŒGšŠ’G‰Œ•Œ›Gœ•‹šSG›ŒG—–“ Š“•ŠšSG ˆ•‹G ›ŒG –š—›ˆ“šUG tˆ• G ”Œ‹Šˆ“G ˆ•‹GšŠŒ•›ŠGˆœ›–™›ŒšG ˆŒGŒ”—ˆš¡Œ‹G ›ŒG •Š™ŒˆšŒG –G •Œœ™ˆš›Œ•ˆG •G ›ŒG ž–™’³ •ŽGŠ“ˆššŒšUG {ŒGˆ”—“ŒG”ˆ›Œ™ˆ“šG–G›ŒG iŒ™“•G z›ˆ›ŒG p•šœ™³ ˆ•ŠŒG zˆ•›ˆ™œ”Gˆ›G iŒŒ“›¡GˆŒG”–™ŒG—ˆ™›Šœ“ˆ™“ GšŒ™Œ‹G›–G —™–ŒG ›ŒG š›Œˆ‹ G •Š™ŒˆšŒG –G •Œœ™ˆš›Œ•ˆSˁˆŠ›œˆ““ G ™–”G X_G—Œ™GŠŒ•›G •G X_`^G ›–G[WG—Œ™GŠŒ•›G •G X`W[UG z”“ˆ™GŽœ™ŒšG ˆ™ŒGš–ž•G‰ G›ŒGšˆ•›ˆ™œ”Gˆ›GŒ“Œ•‹–™SGžŒ™ŒG›ŒGŽŒš›G —Œ™ŠŒ•›ˆŽŒG–G•Œœ™–›ŠG—ˆ›Œ•›šGžŒ™ŒGˆ•‹ž–™’Œ™šGˆ•‹Gš’““Œ‹G ž–™’Œ™šSGž›Gž–”G›ŒGŠ–”‰•ˆ›–•G–G— šŠˆ“Gˆ•‹G”Œ•›ˆ“G š›™ˆ•G™ŒˆŠ›Œ‹G‹Œš›™œŠ›Œ“ G–•G›ŒG•Œ™–œšGš š›Œ”Uˉ k–œ‰›“ŒššGšœŠGˆ•G•Š™ŒˆšŒG•GŽœ™ŒšGšG‹œŒG›–G”—™–Œ‹G ‹ˆŽ•–ššG ˆšG žŒ““G ˆšG ›–G ›ŒG ˆŠ›œˆ“G Ž™–ž›G –G •Œœ™ˆš›Œ•ˆG ˆ”–•ŽG ž–™’•ŽG —Œ–—“ŒUG {ŒG •šœ™ˆ•ŠŒG — šŠˆ•šG ˆŒ QG Œ›šŠ™›G œ™G r“•šŠŒG tŒ‹¡•SG i‹UG ]WUG UUX`W]UG hœšG ‹Œ”G zˆ•ˆ³ ›–™œ”G ‹Œ™G sˆ•‹ŒšŒ™šŠŒ™œ•Žšˆ•š›ˆ“›G iŒ™“•UG |‰Œ™G oŒ™¡Œ™’™ˆ•’œ•ŽŒ•G •G ‹Œ™G iŒ™“•Œ™G h™‰Œ›Œ™‰Œ–“’Œ™œ•ŽSG ——UG XZ]G ˆ•‹G XZ^U ›Gy–›SG k™G l”“aG l™”œ‹œ•ŽG ‹œ™ŠG iŒ™œšˆ™‰Œ›UG v—UG Š ›SG ——UG ]XZT]X[U

105

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š—ŒŠˆ“G —™–›ŒŠ›–•G ›–G ž–”Œ•G ˈ –•G ›ŒG ”Œ™ŒG ˆŠ›G –G šŒŸUˉG ~–”Œ•G žŒ™ŒG Š›¡Œ•šSG Œ•ŠŒG ›Œ™GŠ–•›™ˆŠ›œˆ“G —–žŒ™šG Š–œ“‹G •–›G ‰ŒG‹š›œ™‰Œ‹UG p•‹ŒŒ‹G ›ŒG uŒžG €–™’Gj–œ™›G –Gh——Œˆ“šG žŒ•›Gš–Gˆ™GˆšG›–Gšˆ G•G ›ŒGˆŠŒG–GŠ“¡Œ‹G—™ŒŠŒ‹Œ•›SG ›ˆ›G ˈ ˆ•G ˆ‹œ“›G ž–”ˆ•G šG •–›G ›–G ‰ŒG ™ŒŽˆ™‹Œ‹G U U U G •G ˆ• G –›Œ™G“Ž›G›ˆ•G›ŒG”ˆ•GšG™ŒŽˆ™‹Œ‹SGžŒ•G›ŒG˜œŒš›–•G ™Œ³ “ˆ›ŒšG›–G›ŒG‰œš•ŒššG—œ™šœ›SG –™GŠˆ““•ŽVN {šGš—ŒŠ–œšGˆ™Žœ”Œ•›Gˆ•‹G›ŒGˆ““ŒŽŒ‹G”—–šš‰“› G–G ‹Œ™Œ•›ˆ›•ŽG ‰Œ›žŒŒ•G ”Œ•G ˆ•‹G ž–”Œ•G žˆšSG •‹ŒŒ‹SG “–•ŽG ˆ•G –‰š›ˆŠ“ŒG•G ›ŒGžˆ G–G šŒŠœ™•ŽGž–”Œ•NšG “ˆžšUG {œšG•G l•Ž“ˆ•‹G‰Œ›žŒŒ•G X_^[Gˆ•‹G X`WXG›ŒGˆŠ›–™ GˆŠ›šGžŒ™ŒG•G›ŒG ”ˆ•G –——–šŒ‹G ‰ G ˆ•G ”—–™›ˆ•›G ž•ŽG–G›ŒGž–”Œ•NšG ™Ž›šG —ˆ™› UG zœ—Œ™Šˆ““ GŒžŒ‹SG ›ŒGŽ™Œˆ›G ”–Œ”Œ•›G ›–G–‰›ˆ•G –™Gž–”Œ•SG •G ˆ““G Œ“‹šSG ™Ž›šG ™–”G žŠG ›Œ G ˆŒG ‰ŒŒ•G ‹Œ‰ˆ™™Œ‹SG ”Ž›G ˆ——Œˆ™G •Š–•šš›Œ•›G ž›G ›ŒG Œ–™›G ›–G —™–³ ›ŒŠ›G –•ŒG šŒŸG ˆšG Š–•›™ˆš›Œ‹G ž›G ›ŒG –›Œ™UG iœ›G ›šG šG ˆG œ•‹ˆ”Œ•›ˆ“G ”šŠ–•ŠŒ—›–•UG p›G Ž•–™ŒšG ›ŒG ˆŠ›G ›ˆ›G —™–³ ›ŒŠ›–•G–GŒˆ“›G ˆšG•ŒŒ™G‰ŒŒ•GŒ“‹GˆG‰ˆ™G›–G›ŒGŒŠŒ•Š G –G”Œ•GˆšGŠ›¡Œ•šU p›GˆšG Œ›G›–G‰ŒGšœŽŽŒš›Œ‹SG–™G•š›ˆ•ŠŒSG›ˆ›G›ŒG”•Œ™šG –G XZG š›ˆ›Œšˁh™¡–•ˆSG jˆ“–™•ˆSG j–“–™ˆ‹–SG p‹ˆ–SG tˆ™ ³ “ˆ•‹SGtšš–œ™SGt–•›ˆ•ˆSGuŒˆ‹ˆSGv™ŒŽ–•SGv’“ˆ–”ˆSG|›ˆSG ~ˆš•Ž›–•SG ˆ•‹G ~ –”•Žˁˆ™ŒG ‹šŠ™”•ˆ›Œ‹G ˆŽˆ•š›SG‰Œ³ ŠˆœšŒG ›ŒG š›ˆ›ŒG ™Œš›™Š›šG ›Œ™G ž–™’•ŽG –œ™šG ›–G ŒŽ›G •G –•ŒG ‹ˆ QG –™G ›ŒG ŒŸ—“Š›G —œ™—–šŒG –G —™–›ŒŠ›•ŽG ›ŒG Œˆ“›G –G ›šG Š›¡Œ•šUG p›G ˆšG  Œ›G ›–G ‰ŒG šœŽŽŒš›Œ‹G ›ˆ›G ›ŒG •›Œ™³ š›ˆ›ŒG™ˆ“™–ˆ‹G ›Œ“ŒŽ™ˆ—Œ™šGˆ™ŒG“ŒššG ˆ“œˆ‰“ŒGˆšGŠ›¡Œ•šG ›ˆ•G ˆ• G –›Œ™G ”Œ•G ‰ŒŠˆœšŒG j–•Ž™ŒššSG •G X`W^SG ™Œš›™Š›Œ‹G ›Œ™G ž–™’G ›–G ›™›ŒŒ•G –œ™šG ‰ G ‹ˆ G ˆ•‹G ••ŒG –œ™šG ‰ G •Ž›UG {šG š›ˆ›œ›ŒG ˆ•‹G š”“ˆ™G ™Œš›™Š›–•šG •G ”ˆ• G š›ˆ›ŒšG žŒ™ŒG Œ•ˆŠ›Œ‹G •–”•ˆ““ G ›–G šˆŒŽœˆ™‹G ›ŒG ›™ˆŒ“•ŽG —œ‰“ŠUG iœ›G ›šG–•“ GŒŸŠœšŒG–™G‰Œ•ŽGšG›ŒGŒŒŠ›G–GŒŸŠŒššŒG–œ™šGœ—–•G ›ŒG –—Œ™ˆ›ŒNšG ŒŠŒ•Š UG {ŒšŒG ™Œš›™Š›–•šG œ—–•G ”Œ•NšG ž–™’•ŽG –œ™šG ˆŒG •ŒŒ™G •›Œ™Œ™Œ‹G ž›G ›Œ™G ˆ“œŒG –™G ‹Ž•› GˆšGŠ›¡Œ•šUG ~ G›Œ•SG š–œ“‹Gš”“ˆ™G™Œš›™Š›–•šˁ QG Š–œ•›ŒšU

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254

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v•ŒG œ™›Œ™G —–•›G ™ŒŽˆ™‹•ŽG ›ŒG ˆ“‹› G –G ›ŒšŒG “ˆžšG •ŒŒ‹šGŠ–””Œ•›G•G›šG‰™ŒGŠ™–•Š“ŒUG {šGŠ–•ŠŒ™•šGˆ•–›Œ™G šŒŠ›–•G –G ›ŒG –œ™›ŒŒ•›G ˆ”Œ•‹”Œ•›SG ‹ŒŠ“ˆ™•ŽG ›ˆ›G •–G š›ˆ›ŒGšˆ““G ˈ ‹Œ• G›–Gˆ• G—Œ™š–•Gž›•G›šG‘œ™š‹Š›–•GŒ˜œˆ“G —™–›ŒŠ›–•G –G ›ŒG “ˆžšUˉG |•‹Œ™G ›šSG –™G š”“ˆ™G —™–š–•šG •G š›ˆ›ŒG Š–•š››œ›–•šSG “ˆžšG ™ŒŽœ“ˆ›•ŽG Š–•‹›–•šG –G “ˆ‰–™G ˆŒG ‰ŒŒ•G ‹ŒŠ“ˆ™Œ‹G •ˆ“‹SG ˆšG ‹šŠ™”•ˆ›•ŽG ”—™–—Œ™“ G ‰Œ›žŒŒ•G—Œ™š–•šG–™GŠ“ˆššŒšSG ›œšG‹Œ• •ŽGŒ˜œˆ“G—™–›ŒŠ›–•G–G ›ŒG“ˆžšU u–žG ›G ”œš›G ‰ŒG ™Œ”Œ”‰Œ™Œ‹G ›ˆ›G •G ›Œ™G ™ŒŒžG –G “ŒŽš“ˆ›–•SG ›G šG ›ŒG œ•Š›–•G –G ›ŒG Š–œ™›šG ›–G ‹Œ›Œ™”•ŒG žŒ›Œ™G ›ŒG “ŒŽš“ˆ›œ™ŒG ˆ‹G ˆ• G ™Œˆš–•ˆ‰“ŒG Ž™–œ•‹šG –™G ›šG ˆŠ›–•bG •–›GžŒ›Œ™G›ŒG“ˆžšGˆšG Œ•ˆŠ›Œ‹Gˆ™ŒG •Œ™Œ•›“ Gˆ•‹G •G ›Œ”šŒ“ŒšG Ž––‹G–™G ‰ˆ‹SG‰œ›GžŒ›Œ™G›ŒG “ŒŽš“ˆ›œ™ŒG žˆšG ‘œš›Œ‹G•G›šGŠ–•Š“œš–•šSGˆšGŒ”‰–‹Œ‹G•G›ŒG“ˆžšU v‰–œš“ SG•GŒ•ˆŠ›•ŽGˆ• G“ˆžšG“”›•ŽG–œ™šG–G“ˆ‰–™SG ›ŒG “ŒŽš“ˆ›œ™ŒG ”œš›G œšŒG ›šG ‹šŠ™Œ›–•G •G Š––š•ŽG ˆ”–•ŽG ˆ™–œšGˆ“›Œ™•ˆ›ŒšSGšœŠGˆšG›ŒG•œ”‰Œ™G–G–œ™šG›–G‰ŒGŸŒ‹SG ›ŒG—Œ™š–•šG›–G‰ŒG—™–›ŒŠ›Œ‹SG ˆ•‹G –›Œ™Gš”“ˆ™G—–•›šUG v—³ —–•Œ•›šG–G›ŒšŒG“ˆžšGˆŒGœšœˆ““ G™ˆšŒ‹G›ŒGŠ–•›Œ•›–•G›ˆ›G ›Œ GžŒ™ŒGœ•ˆ™“ G‹šŠ™”•ˆ›–™ SG‰ŒŠˆœšŒGŠŒ™›ˆ•G—Œ™š–•šG–™G Š“ˆššŒšG–G—Œ™š–•šGžŒ™ŒG•Š“œ‹Œ‹G–™G“Œ›G–œ›U p•G›ŒGy›ŠŒGŠˆšŒSG–™G•š›ˆ•ŠŒSG›GžˆšGŠ“ˆ”Œ‹G›ˆ›G›ŒG “ˆžGžˆšGœ•ˆ™Gˈ Š“ˆššˉG“ŒŽš“ˆ›–•G‰ŒŠˆœšŒG›G•Š“œ‹Œ‹Gž–”Œ•G ž–™’•ŽG•GˆŠ›–™ŒšGˆ•‹G“ˆœ•‹™ŒšGˆ•‹G•–›G•G–›Œ™G–ŠŠœ—ˆ³ ›–•šUG p•G ˆG ”–™ŒG™ŒŠŒ•›G ŠˆšŒG •–“•ŽG ›ŒG tŠŽˆ•G ›Œ•TG –œ™G“ˆžG–™Gž–”Œ•QG›ŒG“ˆžGžˆšGˆ››ˆŠ’Œ‹GˆšGˈ Š“ˆššˉG“ŒŽš“ˆ³ ›–•G ‰ŒŠˆœšŒG ˆG ‹Œ™Œ•›G Š“ˆššG –Gž–™’Œ™šGžŒ™ŒG–”››Œ‹UG p•G ‰–›G›ŒšŒGŠˆšŒšG›ŒGŠ–œ™›šG—Œ™–™”Œ‹GˆGŽ™Œˆ›GšŒ™ŠŒG‰ Gœ—³ –“‹•ŽGˆ•‹G™ŒˆššŒ™›•ŽG›ŒG™ŒŒ‹–”G–G›ŒG“ŒŽš“ˆ›œ™ŒšG›–GœšŒG ›Œ™G‹šŠ™Œ›–•GˆšG›–G›ŒGšŠ–—ŒG–G›ŒG“ˆžšUG ˈGpGˆ““G“ˆžšGžŒ™ŒG Œ“‹G œ•Š–•š››œ›–•ˆ“G ‰ŒŠˆœšŒG ›Œ G ‹‹G •–›G Œ”‰™ˆŠŒG ˆ““G —Œ™š–•šSˉG šˆ‹G ›ŒG p““•–šG Š–œ™›G O˜œ–›•ŽGˆ•–›Œ™G‹ŒŠš–•PSG ˈGŒžGž–œ“‹Gš›ˆ•‹G›ŒG›Œš›UˉG pG•GŒˆŠGŠˆšŒG›ŒGŠ–œ™›GŠ–•Š“œ‹Œ‹ QG~›Œ GUG i“–Œ”SGX]ZGtŠUG[X`UGOX`XXPU ̰^G

257

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›ˆ›G ›ŒG “ˆžG žˆšG •–›G ˈ Š“ˆššˉG “ŒŽš“ˆ›–•SG ˆ“›–œŽG ›G ‹‹G š•Ž“ŒG–œ›G›–šŒGž–™’Œ™šGž–GšŒŒ”Œ‹G›–G›ŒG“ŒŽš“ˆ›œ™ŒG”–š›G •G•ŒŒ‹G–G—™–›ŒŠ›–•UG {ŒGtŠŽˆ•GŠ–œ™›GˆŽˆ•G›™–žšG›ŒG ™Œš—–•š‰“› G –™G ›ŒG šŠ–—ŒG –G ›ŒG “ˆžG š˜œˆ™Œ“ G œ—–•G ›ŒG ‹šŠ™Œ›–•G –G ›ŒG “ŒŽš“ˆ›œ™ŒSG ˜œ–›•ŽG ž›G ˆ——™–ˆ“G ™–”G j––“Œ NšG j–•š››œ›–•ˆ“G s”›ˆ›–•šG –•G ›šG —–•›SG ˈ ›ŒG “ŒŽš“ˆ›œ™ŒG ”œš›G ‘œ‹ŽŒUˉG {ŒG “ˆžG Šˆ••–›G ‰ŒG Šˆ““Œ‹G œ•Š–•³ š››œ›–•ˆ“G‰ŒŠˆœšŒGˈG›G‹–ŒšG•–›Gˆ——“ G›–Gˆ““GŠˆ““•ŽšUˉ {šGŒ”—ˆššGœ—–•G›ŒG™ŒŒ‹–”G–G›ŒN“ŒŽš“ˆ›œ™ŒGš–œ“‹G ‰ŒG žŒ“Š–”ŒG ›–G ˆ““G “–Œ™šG –G ‹Œ”–Š™ˆŠ SG ŒŒ•G ›–œŽG “ŒŽš³ “ˆ›œ™ŒšSG “’ŒG ˆ““Gœ”ˆ•GˆŽŒ•ŠŒšSG ”ˆ GŒ™™Gˆ•‹G—™–ŒGˆ“šŒG›–G ›Œ™G›™œš›U p•G—–•›G–GˆŠ›SG ›ŒG tŠŽˆ•G ›Œ•T–œ™G“ˆžGžŠGžˆšG šœš›ˆ•Œ‹G ‰ G›ŒG tŠŽˆ•G zœ—™Œ”ŒG j–œ™›G Š–•›ˆ•šG ˆG›–™³ –œŽ“ G Š–œšG šŒŠ›–•UG p›G ŒŸŠ“œ‹ŒšG ™–”G ›ŒG —™–›ŒŠ›–•G –G ›ŒG “ˆžGˆ““Gž–”Œ•G ˈ Œ•ŽˆŽŒ‹G •G —™ŒšŒ™•ŽG—Œ™šˆ‰“ŒGŽ––‹šG •G ™œ›G ˆ•‹G ŒŽŒ›ˆ‰“ŒG Šˆ•••ŽG Œš›ˆ‰“š”Œ•›šUˉG {šG ŒŸ³ ŠŒ—›–•G žˆšG ˆG žŒˆ’G Š–•ŠŒšš–•G ›–G ˆG —–žŒ™œ“G •›Œ™Œš›SG ˆG  Œ“‹•ŽG›–Gœ•‹œŒG—™Œššœ™ŒUG €Œ›G –•“ GˆG‹–Š›™•ŒG–G‹Œš—ˆ™G ž–œ“‹G žŒ“Š–”ŒG ›ŒG Š–™™ŒŠ›–•G –G šœŠG “ŒŽš“ˆ›ŒG ˆ“œ™ŒšG ›™–œŽG ›ŒG ˆŽŒ•Š G –G›ŒG Š–œ™›šUG {ŒG ™Œ”Œ‹ G “ŒšG •–›G •G ‹Œš›™– •ŽG›ŒG“ŒŽš“ˆ›ŒGœ•Š›–•šGˆ•‹Gˆ•‹•ŽG–Œ™G›–G›ŒG Š–œ™›šG ˆG ž‹Œ™G ‘œ™š‹Š›–•G ›ˆ•G šG ›Œ™G ™Ž›UG p›G “ŒšG •G ™ˆš•ŽG›ŒGŠˆ“‰Œ™G–G“ŒŽš“ˆ›–™šGˆ•‹G•G‰™•Ž•ŽG›–G‰Œˆ™Gœ—–•G ›ŒG“ŒŽš“ˆ›œ™ŒšG›ŒG—–žŒ™G–G•ŒžG‹ŒˆšSGžŠSG•G›ŒG“–•ŽG™œ•SG •ŒŒ™Gˆ“šUG m–™G›šGžŒG•ŒŒ‹SG—™”ˆ™“ SGˆGž‹Œ™Gš›œ‹ Gˆ•‹G ’•–ž“Œ‹ŽŒG–G›–šŒGœ•‹ˆ”Œ•›ˆ“G ›™œ›šGžŠG ˆ™ŒG›ŒG ‰ˆšŒšG –G–œ™G—™–›ŒŠ›ŒG“ŒŽš“ˆ›–•SG ˆ•‹GžŠG›ŒšŒGŠˆ—›Œ™šGˆŒG š–œŽ›G‰™Œ“ G›–GšŒ›G–™›U

258

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I O YPG iŒŠˆœšŒG ›ŒGš›ˆ›œ›ŒG ‹–ŒšG•–›Gˆ——“ GŒ˜œˆ““ G ›–Gˆ““G—Œ™³ š–•šGš”“ˆ™“ Gš›œˆ›Œ‹SGˆ•‹GšGŠ“ˆššG“ŒŽš“ˆ›–•U ˈGOZPG {ŒGš›ˆ›œ›ŒGšG•–›GˆGˆ“‹GŒŸŒ™ŠšŒG–G›ŒG—–“ŠŒG—–žŒ™UG {ŒG ’•‹šG –G ž–™’G —™–šŠ™‰Œ‹G ˆ™ŒG •–›G œ•“ˆžœ“SG •–™G ˆ™ŒG ›Œ G ‹ŒŠ“ˆ™Œ‹G ›–G‰ŒG””–™ˆ“G–™G‹ˆ•ŽŒ™–œšG›–G ›ŒG —œ‰“ŠGŒˆ“›bG•–™G Šˆ•G šœŠG ˆG“ˆžG‰ŒGšœš›ˆ•Œ‹G –•G ›ŒG Ž™–œ•‹G ›ˆ›G›GšG‹ŒšŽ•Œ‹G ›–G—™–›ŒŠ›Gž–”Œ•G–•GˆŠŠ–œ•›G–G›Œ™GšŒŸUG {Œ™ŒGšG•–G•ŒŠŒššˆ™ G –™G ™Œˆš–•ˆ‰“ŒG Š–••ŒŠ›–•G ‰Œ›žŒŒ•G ›ŒG “”›ˆ›–•G —™ŒšŠ™‰Œ‹G ‰ G›ŒGˆŠ›Gˆ•‹G›ŒG—œ‰“ŠGŒˆ“›SGšˆŒ› G–™GžŒ“ˆ™ŒUˉ p›G šG ›ŒG “ˆžG –G v™ŒŽ–•G ›ˆ›G ž–”Œ•SG žŒ›Œ™G ”ˆ™™Œ‹G –™G š•Ž“ŒSG ˆŒG Œ˜œˆ“G Š–•›™ˆŠ›œˆ“G ˆ•‹G —Œ™š–•ˆ“G ™Ž›šG ž›G ”Œ•UG hšGšˆ‹G ‰ GjŒGqœš›ŠŒG ~–“Œ™›–•SG•Gm™š›Guˆ›–•ˆ“Giˆ•’GUG sŒ–•ˆ™‹SG Z]G v™ŒŽ–•SG Z`WSG Z`]SG ˆ›Œ™G ˆG ™ŒŒžG –G ›ŒG ˆ™–œšG š›ˆ›œ›ŒšG–G›ŒGz›ˆ›ŒGœ—–•G›ŒGšœ‰‘ŒŠ›a ˈ ~ŒG ”ˆ G ›Œ™Œ–™ŒG šˆ G ž›G —Œ™ŒŠ›G Š–•‹Œ•ŠŒG ›ˆ›SG ž›G ›ŒšŒG ›™ŒŒGšŒŠ›–•šG œ—–•G ›ŒG š›ˆ›œ›ŒG‰––’SG ›ŒG žŒG Šˆ•G‹Œˆ“SG •–›G –•“ G ž›G Œ™GšŒ—ˆ™ˆ›ŒG —™–—Œ™› SG ˆŠ˜œ™Œ‹G ™–”G žˆ›ŒŒ™G š–œ™ŠŒSG•G ›ŒGšˆ”ŒG ”ˆ••Œ™GˆšGŒ™Gœš‰ˆ•‹GŠˆ•Gž›G —™–—Œ™› G ‰Œ“–•Ž•ŽG›–G ”SG ‰œ›G›ˆ›GšŒG”ˆ G”ˆ’ŒGŠ–•›™ˆŠ›šGˆ•‹G•Šœ™G “ˆ‰“›ŒšSGˆ•‹G ›ŒGšˆ”ŒG”ˆ G‰ŒGŒ•–™ŠŒ‹GˆŽˆ•š›GŒ™SG›ŒGšˆ”ŒG ˆšGGšŒGžŒ™ŒGˆGŒ””ŒGš–“ŒUG {Œ™ŒGšG•–žG•–G™Œš‹œœ”G–GŠ“G ‹šˆ‰“› G™Œš›•ŽGœ—–•GŒ™GžŠG šG•–›G™ŒŠ–Ž•¡Œ‹GˆšGŒŸš›•ŽG ˆŽˆ•š›G›ŒGœš‰ˆ•‹UG {ŒGŠœ™™Œ•›G™œ•šGš›Œˆ‹“ G ˆ•‹Gš›™–•Ž“ G •G›ŒG‹™ŒŠ›–•G–G›ŒGŒ”ˆ•Š—ˆ›–•G–G›ŒGžŒSGˆ•‹G›ŒG—–“Š SG ˆšG ‹šŠ“–šŒ‹G ‰ Gˆ““G ™ŒŠŒ•›G“ŒŽš“ˆ›–•G œ—–•G ›ŒG šœ‰‘ŒŠ›G •G ›šG z›ˆ›ŒSG šG ›–G —“ˆŠŒG Œ™G œ—–•G ›ŒGšˆ”ŒG––›•ŽGˆšG GšŒG žŒ™ŒGˆG Œ””ŒGš–“ŒSG•–›G–•“ Gž›G™Œš—ŒŠ›G›–GŒ™GšŒ—ˆ™ˆ›ŒG—™–—Œ™› SG‰œ›G ˆšG›GˆŒŠ›šGŒ™G™Ž›G›–G”ˆ’ŒG‰•‹•ŽGŠ–•›™ˆŠ›šbGˆ•‹G›ŒG”–š›G •ˆ›œ™ˆ“G Š–™–““ˆ™ G ›–G ›ŒG š›œˆ›–•G šG ›ˆ›G›ŒG™Œ”Œ‹ŒšG–™G ›ŒG Œ•–™ŠŒ”Œ•›G –G “ˆ‰“›ŒšG •Šœ™™Œ‹G ˆ™ŒG ”ˆ‹ŒG Š–TŒŸ›Œ•šŒG ˆ•‹G Š–TŒ˜œˆ“Gž›GšœŠGŒ•“ˆ™ŽŒ‹GŠ–•‹›–•šUˉ p›G ›œšG ˆ——Œˆ™šG ›ˆ›SG —œ››•ŽG ›–G –•ŒG š‹ŒG ›ŒGŒ“ŒŠ›ŒG ™ˆ•³ ŠšŒSG •G ›ŒG ”ˆ››Œ™G –G —Œ™š–•ˆ“G ˆ•‹G Š–•›™ˆŠ›œˆ“G ™Ž›šG ›Œ G š›ˆ•‹G–•G›ŒGšˆ”ŒG—“ˆ•ŒGˆšG›ŒG–›Œ™GšŒŸUG {Œ™G™Ž›šG•G›ŒšŒG ™Œš—ŒŠ›šGŠˆ•G•–G”–™ŒG‰ŒG•™•ŽŒ‹G›ˆ•G›ŒGŒ˜œˆ“G™Ž›šG–G›Œ™G ‰™–›Œ™šUG ~ŒGŒ“‹G•G s–Š•Œ™GUGuŒžG €–™’SG X`_G|UGzUG[\SG›ˆ›

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t|sslyG v.G vylnvuU YW_G|UGiUG

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t ™UG ~ UG sˆ™G {–”—š–•SG ž›Gž–”G t ™UG jUG ~ UG mœ“›–•G žˆšG–•G›ŒG‰™ŒšSG –™G—“ˆ•›G•GŒ™™–™a ~Œ•G ‹Œˆ“•ŽG ž›G šœ‰‘ŒŠ›šG žŠG ‹–G •–›G ˆŒŠ›G ›ŒG —œ‰“ŠG ŽŒ•Œ™ˆ““ SG “ŒŽš“ˆ›–•G ™Œš›™Š›•ŽG —™ˆ›ŒG ˆŠ››ŒšG ˆ•‹G ›ŒG Œ•‘– ”Œ•›G –G —™ˆ›ŒG —™–—Œ™› G ”œš›G ‰ŒG —“ˆ•“ G •ŒŠŒššˆ™ G‰Œ–™ŒG›GŠˆ•G‰ŒGœ—Œ“‹Gœ•‹Œ™G›ŒG—–“ŠŒG—–žŒ™UG oˆ••‰ˆ“GMGz›UGq–šŒ—Gy UGj–UGUGoœšŒ•SG`\G|UGzUG[]\UG p›G ‰Œ“–•ŽšG›–G›ŒG‘œ‹Šˆ™ G›–G‹Œ›Œ™”•ŒGžˆ›Gˆ™ŒG›ŒG—™–—Œ™G šœ‰‘ŒŠ›šG–™G›ŒGŒŸŒ™ŠšŒG–G›ŒG—–“ŠŒG—–žŒ™Gˆ•‹GžŒ•G›ŒG “ŒŽš“ˆ›ŒG ‹šŠ™Œ›–•G šG ™Œˆš–•ˆ‰“ G Œ”—“– Œ‹UG yœš›™ˆ›G UG wŒ–—“ŒSG X_\G p““•–šSG XZZbG o–“‹Œ•G UG oˆ™‹ SG X]`G |UG zUG Z]]bGs–Š•Œ™GUGuŒžG€–™’SGX`_G|UGzUG[]UG p› GšG•–›GšœŠŒ•›G ›ˆ›G ›ŒG ŽŒ•Œ™ˆ“G —œ™—–šŒG –G ›ŒG ˆŠ›G šˆ““G ‰ŒG ž›•G ›ŒG ™ŒŠ–Ž•¡Œ‹G“”›šG–G—–“ŠŒG—–žŒ™SG‰œ›G›ŒG”Œˆ•šGŒ”—“– Œ‹G ›–G ˆŠŠ–”—“šG ›ˆ›G —œ™—–šŒG ”œš›G •–›G •ˆ‹ŒG —™ˆ›ŒG ™Ž›šG šŒŠœ™Œ‹G ‰ G ›ŒG mŒ‹Œ™ˆ“G j–•š››œ›–•UG j–••Œ““ G UG |•–•GzŒžŒ™Gw—ŒG j–USGX_[G|UG zUG \[WbGqˆŠ–‰š–•GUGtˆššˆ³ ŠœšŒ››šSG X`^G |UG zUG XXbG h›Šš–•SG {–—Œ’ˆG MG zˆ•›ˆGmŒG y UG j–UGUG }–š‰œ™ŽSGYZ_G|UGzUG\]UG w–“ŠŒG™ŒŽœ“ˆ›–•šGˆŒG•–›G ŽŒ•Œ™ˆ““ G‰ŒŒ•GŒŸ›Œ•‹Œ‹G ›–G ›ŒG™Œš›™Š›–•G –G ›ŒG™Ž›G –G Š–•›™ˆŠ›G ‰Œ›žŒŒ•G Œ”—“– Œ™G ˆ•‹G Œ”—“– ŒŒUG h““ŽŒ Œ™G UG s–œšˆ•ˆSG X]\G|UGzUG\^`bGj–——ˆŽŒGUGrˆ•šˆšSGYZ]G|UGzUGXU

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sˆžšG™ŒŽœ“ˆ›•ŽG–œ™šG–GŒ”—“– ”Œ•›GˆŒG‰ŒŒ•GšŒ“‹–”G œ—Œ“‹Gˆ•‹G–•“ G•G™Œš—ŒŠ›G–GŒ”—“– ”Œ•›G‹™ŒŠ›“ GˆŒŠ›³ •ŽG›ŒGžŒ“ˆ™ŒSGŒˆ“›G–™GšˆŒ› G–G›ŒG—œ‰“ŠSG–™G›–GžŠG ›ŒGz›ˆ›ŒG–™G–•ŒG–G›šGšœ‰‹š–•šGšGˆG—ˆ™› SG–™G•–“•ŽG œ•œšœˆ“G‹ˆ•ŽŒ™G›–G ›ŒGŒˆ“›G–G›ŒGŒ”—“– ŒŒUG wŒ–—“ŒGUG l™ŒG y UG y UG j–”—ˆ• SG X`_G uUG €UG Zn`bG h›’•šG UG rˆ•šˆšSG X`XG |UG zUG YW^bG o–“‹Œ•G UG oˆ™‹ SG X]`G |UG zUG Z]]bG z“ˆ›ŒG UG tœ““Œ™SGYW_G|UGzUG[XYU p•›Œ™Œ™Œ•ŠŒG ž›G —™ˆ›ŒG “ˆ‰–™G Š–•›™ˆŠ›šG •–›G ˆŒŠ›•ŽG ›ŒG —œ‰“ŠG Šˆ•G –•“ G ‰ŒG šœš›ˆ•Œ‹GžŒ•G™Œˆš–•ˆ‰“ G•ŒŠŒš³ šˆ™ G›–G—™ŒšŒ™ŒGŒˆ“›SG ˆ•‹G •–›Gœ•“ŒššG ›ŒGŠ–œ™›GŠˆ•G šˆ G ›ˆ›G›ŒG—“ˆŠŒG–™G•ˆ›œ™ŒG–GŒ”—“– ”Œ•›GšG–GšœŠGœ•œšœˆ“G ‹ˆ•ŽŒ™G ›–G Œˆ“›G ˆšG ›–G ‹Œ”ˆ•‹G “ŒŽš“ˆ›ŒG •›Œ™Œ™Œ•ŠŒUG s–Š•Œ™GUGuŒžG €–™’SG X`_G|UGzUG[]bGz›ˆ›ŒGUGtœ““Œ™SGšœ—™ˆUG pG “ŒŽš“ˆ›ŒG •›Œ™Œ™Œ•ŠŒG ž›G —™–—Œ™› G ™Ž›G šG ›–G ‰ŒG šˆ•Š›–•Œ‹G•GŒŒ™ GŠˆšŒG•GžŠG›ŒGŠ–œ™›GŠˆ••–›Gšˆ G›ˆ›G ‰Œ –•‹G ™Œˆš–•ˆ‰“ŒG ‹–œ‰›G šœŠG •›Œ™Œ™Œ•ŠŒG ž““G •–›G ›Œ•‹G ›–G ‰Œ•Œ›G –™G —™–›ŒŠ›G ›ŒG Œˆ“›G –™G žŒ“ˆ™ŒG –G ˆG “ˆ‰–™Œ™SG ›Œ•G ›ŒGm–œ™›ŒŒ•›G h”Œ•‹”Œ•›G”Œˆ•šG•–›•ŽG•G”ˆ›³ ›Œ™šG–G›šG’•‹UG p› GšG–•“ GžŒ•G›ŒGŠ–œ™›GŠˆ•Gšˆ G›ˆ›G šœŠG ™ŒŽœ“ˆ›–•G šG ™Œˆš–•ˆ‰“ G •ŒŠŒššˆ™ G ›ˆ›G ›ŒG m–œ™³ ›ŒŒ•›Gh”Œ•‹”Œ•›GŠŒˆšŒšG›–G•‰›G›ŒG™ŒŽœ“ˆ›–•UG j–•³ š‹Œ™•ŽG ›–šŒG ”ˆ››Œ™šG –G Š–””–•G ’•–ž“Œ‹ŽŒSG žŠG ›ŒG Š–œ™›Gš–œ“‹G‹–GOqˆŠ–‰š–•GUGtˆššˆŠœšŒ››šSG X`^G|UG zUG XXPSG ›G”ˆ GšŒŒ”Gˆ™‹“ GŠ–•ŠŒˆ‰“ŒG›ˆ›GˆG“ˆžGž›G›ŒG‰™–ˆ‹G šŠ–—ŒG –G ›ŒG v™ŒŽ–•G ˆŠ›G Šˆ•G ‰ŒG Œ“‹G ›–G ‰ŒG •ŒŠŒššˆ™ G –™G ›ŒG —™ŒšŒ™ˆ›–•G –G ›ŒG Œˆ“›G –G Œ”—“– ŒŒšG •G ”““šSG ˆŠ›–™ŒšG ˆ•‹G ”ˆ•œˆŠ›œ™•ŽG Œš›ˆ‰“š”Œ•›šUG {ŒG –ŠŠœ³ —ˆ›–•šG ˆŒŠ›Œ‹G ˆ™ŒG ›ŒG –™‹•ˆ™ G Œ”—“– ”Œ•›šG –G “ŒSG ˆ•‹G •–“ŒG –•“ G ›ŒG –™‹•ˆ™ G ‹ˆ•ŽŒ™šG ›–G Œˆ“›G ›ˆ›G ˆŠŠ–”—ˆ• G ”ˆ•œˆ“G “ˆ‰–™UG p› G Šˆ•G ˆ™‹“ G ‰ŒG Š–•›Œ•‹Œ‹G ›ˆ›G›ŒG”ˆ•Gž–GžŒŒ“šGšˆŠ’Œ‹G“–œ™G™–”G›ŒG”““G›–G›ŒG žˆ™Œ–œšŒSG –™G ž–G ’ŒŒ—šG ›ŒG ‰––’šSG –™G ‹Œˆ“šG ž›G ›ŒG ˆ™”Œ™SG™ŒŠŒ•ŽG›ŒGŽ™ˆ•SGž–™’šG•GˆG—–š›–•G–Gœ•œšœˆ“G ‹ˆ•ŽŒ™SG –™G ›ˆ›G šG Œˆ“›G ž““G ‰ŒG ”—ˆ™Œ‹G G ŒG šG —Œ™³ ”››Œ‹G ›–G ž–™’G ›ŒG •œ”‰Œ™G –G –œ™šG šG –ž•G ‘œ‹Ž”Œ•›

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‹Š›ˆ›ŒšSG –™G›ˆ›GŒGšG•–›G–G šœŠŒ•›G•›Œ““ŽŒ•ŠŒG ›–G šŒ““G šG “ˆ‰–™G ž›–œ›G ›ŒG —ˆ›Œ™•ˆ“G Žœ‹ˆ•ŠŒG –G ˆG “ŒŽš“ˆ›ŒG ”ˆ‘–™› U {ŒG“ˆžGœ—–•G›šGˆŠŒG™Œœ›ŒšG›ŒGŠ–•›Œ•›–•G›ˆ›G›GšGˆG Œˆ“›G “ˆžSG –™G ›ˆ›G ›ŒG ™ŒŠ›ˆ“šG –G ›ŒG ˆŠ›G •G ­G XG ›Œ™Œ–G žŒ™ŒG‹ŒŒ”Œ‹G ›™œŒG‰ G›ŒG“ŒŽš“ˆ›œ™ŒUG {ŒG“ŒŽš“ˆ›ŒG‹ŒŠ³ “ˆ™ˆ›–•G–G •ŒŠŒšš› SG ŒŒ•GG›ŒGˆŠ›G–““–žŒ‹G šœŠG ‹ŒŠ“ˆ³ ™ˆ›–•SGšG•—›G‰•‹•ŽGœ—–•G›šGŠ–œ™›UG j–——ˆŽŒGUGrˆ•šˆšSG YZnG|UGzUG XbGt••Œš–›ˆGUGiˆ™‰Œ™SG XZ]G|UGzUGZXZbGw–žŒ““GUG wŒ••š “ˆ•ˆSG XY^G|UGzUG]^_bG €ˆ›ŒšGUGt“žˆœ’ŒŒSG XWG~ ˆ““UG [`^UG {ŒG“ˆžGšG•–›GˆG›Œ•T–œ™G“ˆžbG›GšGˆG›™›ŒŒ•T–œ™G “ˆžG ‹ŒšŽ•Œ‹G š–“Œ“ G –™G ›ŒG —œ™—–šŒG –G Š–”—Œ““•ŽG ›ŒG Œ”—“– Œ™G –G “ˆ‰–™G •G ”““šSG ˆŠ›–™ŒšGˆ•‹G ”ˆ•œˆŠ›œ™•ŽG Œš›ˆ‰“š”Œ•›šG ›–G —ˆ G ”–™ŒG –™G “ˆ‰–™G ›ˆ•G ›ŒG ˆŠ›œˆ“G ”ˆ™’Œ›Gˆ“œŒG›Œ™Œ–UG p› GšG‰ˆšŒ‹Gœ—–•GŒŠ–•–”ŠGŽ™–œ•‹šG ŒŸŠ“œšŒ“ UG {ŒG—™–š–•G–™G–Œ™›”ŒGˆ›G›”ŒGˆ•‹G –•ŒTG ˆ“G›ŒG™ŒŽœ“ˆ™GžˆŽŒG™–‰šG ›ŒG“ˆžG–Gˆ• Gˆ™Žœ”Œ•›G ›ˆ›G ”Ž›G‰ŒG”ˆ‹ŒG›–G‰™•ŽG›Gž›•G›–šŒGŽ™–œ•‹šG›ˆ›G‘œš› G ˆ•G ŒŸŒ™ŠšŒG –G ›ŒG —–“ŠŒG —–žŒ™UG m™Œœ•‹SG w–“ŠŒGw–žŒ™SG ­­GZX]SGZX_U {ŒG™Ž›G–G›ŒG“ŒŽš“ˆ›œ™ŒG›–G™ŒŽœ“ˆ›ŒGžˆŽŒšGšG‹Œ•Œ‹G •G z›™ŒŒ›G UG }ˆ™•Œ G l“ŒŠ›™Šˆ“G zœ——“ G j–USG X]WG p•‹ˆ•ˆSG ZZ_SG ˆ•‹G wŒ–—“ŒG UG j–“Œ™SG X]]G uUG €UG XUG {ŒšŒG ‹ŒŠš–•šG ˆ™ŒG •–›GˆŒŠ›Œ‹G ‰ Gh›’•GUG rˆ•šˆšSG X`XG |UG zUG YW^SG ˆ•‹G oŒ”G UG tŠjˆ““SG YZ`G |UG zUG X^\SG žŠG ™Œ“ˆ›ŒG›–G–œ™šG–G “ˆ‰–™G•G—œ‰“ŠGŒ”—“– ”Œ•›šUG zŒŒGˆ“š–Gs–žGUGyŒŒšGw™•›³ •ŽGj–USG[XGuŒ‰™ˆš’ˆSGXY^SGˆ•‹G~ŒŒ“•ŽGi™‹ŽŒGMG{Œ™”•ˆ“G y UGj–UGUGn“”–™ŒSG_Gv–Gj™UGj›UGyŒ—UG_\_U p•šœŠŒ•Š G –G žˆŽŒG ‹–ŒšG •–›G ‘œš› G “ŒŽš“ˆ›ŒG ™ŒŽœ³ “ˆ›–•UG {ŒG žˆŽŒG ˆšG •–G ‰Œˆ™•ŽG œ—–•G Œˆ“›UG z–ŠŒ› G ”ˆ G •–›G –™ŠŒG ›ŒG Œ”—“– Œ™G ›–G —ˆ G žˆŽŒšG šœŠŒ•›G ›–G šœ——–™›G ›ŒG Œ”—“– ŒŒGœ—–•G ›ŒG šŠˆ“ŒG –G šG ‹Œš™ŒUG iœ›G ›šG “ˆžG Ž–ŒšG œ™›Œ™SG Ÿ•ŽG ›ŒG ˆ”–œ•›G ˆ™‰›™ˆ™“ UG p•G ›šGŠˆšŒG›ŒGŒ”—“– ŒŒGžˆšG™ŒŠŒ•ŽGˆG™ŒŽœ“ˆ™GžˆŽŒG–G[WG ŠŒ•›šG—Œ™G–œ™SG–•G›šGˆŠŒGˆG“•ŽGžˆŽŒG ˆ•‹G›Œ™ŒGžˆšG•–G ‰ˆššG–™Gˆ•Gˆ™‰›™ˆ™ G‹Œ”ˆ•‹G›ˆ›GŒG‰ŒG—ˆ‹G]WGŠŒ•›šG—Œ™

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–œ™G –™G ›™ŒŒG –œ™šG –G šG ›”ŒUG {ŒG ŒŒŠ›G šG ›–G ›ˆ’ŒG ”–•Œ G ™–”G ›ŒG Œ”—“– Œ™G ˆ•‹G ŽŒG ›G ›–G ›ŒG “ˆ‰–™Œ™G ž›–œ›G ‹œŒG —™–ŠŒššG –™G ˆ“œŒG •G ™Œ›œ™•UG h“›–œŽG ›ŒG ›Œ™”šG–GŒ”—“– ”Œ•›Gˆ™ŒG”–™ŒG ”—–™›ˆ•›G ›ˆ•G ›ŒG šŒ“ŒŠ³ ›–•G –G ›ŒG Œ”—“– ŒŒSG ŒŒ•G ›ŒG ™Ž›G ›–G šŒ“ŒŠ›G Šˆ••–›G ‰ŒG •ˆ‹Œ‹G ‰ G š›ˆ›ŒG ‹Š›ˆ›–•UG h‹ˆ™G UG |•›Œ‹G z›ˆ›ŒšSG YW_G |UG zUG X]XbG j–——ˆŽŒG UG rˆ•šˆšSG YZ]G |UG zUG XbG jŠˆŽ–SG iœ™³ “•Ž›–•GMGxœ•Š Gy UGj–UGUGtŠnœ™ŒSGYX`G|UGzUG\[`U {ŒGv™ŒŽ–•GˆŠ›G‹šŠ™”•ˆ›ŒšGˆŽˆ•š›G—“ˆ•›G•GŒ™™–™SG ‹Œ• •ŽG ›ŒG Œ˜œˆ“G —™–›ŒŠ›–•G –G ›ŒG “ˆžšUG h›Šš–•SG {–—Œ’ˆG MG zˆ•›ˆG mŒUG y UG j–UG UG }–š‰œ™ŽSG YZ_G |UG zUG \]bG j––“Œ Gj–•š›UG s”USG^›GŒ‹USG —UG \]WU {ŒG—™–š–•G–™GŒŸ›™ˆGžˆŽŒšG‹–ŒšG•–›Gˆ‹G•G›ŒGŒ•–™ŠŒ³ ”Œ•›G–G›ŒG“ˆžGˆšGˆ•G–œ™šT–TšŒ™ŠŒG“ˆžUG {ŒGŠ–””•³ Ž“•ŽG–Gœ•“ˆžœ“G”Œ›–‹šG–GŒŸŒŠœ›–•Gž›GˆG“ˆžœ“G—œ™³ —–šŒG”ˆ G”ˆ’ŒGˆ•GˆŠ›Gœ•Š–•š››œ›–•ˆ“GˆšGŒŒŠ›Œ“ GˆšG”ˆ G ˆ•Gœ•“ˆžœ“G—œ™—–šŒUG j–——ˆŽŒGUGrˆ•šˆšSGYZ]G|UGzUG XUG {ŒG Ÿ•ŽGˆ•‹GŒŸŒŠœ›–•G–G›ŒG–Œ™›”ŒG—ˆ GšGˆ•Gœ•Š–•š››œ³ ›–•ˆ“G”Œˆ•šUG mœ™›Œ™”–™ŒSG›GˆšG•–G™Œˆš–•ˆ‰“ŒG›Œ•‹Œ•Š G ›–G Œ•–™ŠŒG ›ŒG‹ŒŠ“ˆ™Œ‹G —œ™—–šŒG O‹š›•Žœš•ŽG j–””–•³ žŒˆ“›G UG y“Œ SG YXWG tˆššˆŠœšŒ››šSG Z`[bG \UG ŠUSG YZYG |UG zUG ]^XPUG {ŒG—Œ•ˆ“› G›Œ–™ GšGœ•›Œ•ˆ‰“ŒUG p›G•–“ŒšG—Œ•ˆ“³ ¡•ŽGˆ•GŒ”—“– Œ™G–™G‹–•ŽG›ŒGŒ™ G›•ŽG›ŒG“ˆžGˆœ›–™³ ¡ŒšSGš•ŠŒG›ŒGˆŠ›G›šŒ“G—Œ™”›šGŒ”—“– ”Œ•›G‰Œ –•‹G›ŒG›Œ•G –œ™šUG {ŒG—œ™—–šŒGˆ•‹GšŠ–—ŒGˆ™ŒGŸŒ‹G‰ G­GYGžŒ™ŒG›ŒG ›”ŒGˆ•‹G–Œ™›”ŒG—™–š–•šGˆ——Œˆ™G›–ŽŒ›Œ™UG {ŒG—Œ•³ ˆ“› G–™G–“ˆ›•ŽG›ˆ›GšŒŠ›–•GšG—™–‹Œ‹G‰ G­GZSG šG Š–”³ —“Œ›ŒG•G›šŒ“SG ˆ•‹Gœ•–™”G–™GŒŒ™ G–“ˆ›–•G–G›ŒGˆŠ›UG wŒ•ˆ“G “ˆžšG š–œ“‹G ‰ŒG š›™Š›“ G Š–•š›™œŒ‹bG ˆG Š–œ™›G ˆšG •–G —™–•ŠŒG ›–G šœ—Œ™ˆ‹‹G ˆG —Œ•ˆ“› G ‰ G ”Œ™ŒG ”—“Šˆ›–•UG i“ˆŠ’G–•Gp•›Œ™—™Œ›ˆ›–•G–GsˆžšSGY‹GŒ‹USG——UG[\\SG[^XU {ŒGˆŠ›G‰Œ•ŽGœ•Š–•š››œ›–•ˆ“G•GˆG›ˆ“G—ˆ™›G”œš›Gˆ“G ˆšGˆGž–“ŒUG s–žGUG yŒŒšGw™•›•ŽGj–USG[XG uŒ‰™ˆš’ˆSG XY^U SG t™UGmŒ“ŸGm™ˆ•’œ™›Œ™SGž›Gž–”Gt™UGnŒ–™ŽŒGtUGi™–ž•SG h››–™•Œ G nŒ•Œ™ˆ“G –G ›ŒG z›ˆ›ŒG –G v™ŒŽ–•SG ˆ•‹G t™SG q SG WU

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iˆ“Œ SGhššš›ˆ•›Gh››–™•Œ GnŒ•Œ™ˆ“G–G›ŒGz›ˆ›ŒG–Gv™ŒŽ–•SG žŒ™ŒG–•G›ŒG‰™ŒšSG–™G‹ŒŒ•‹ˆ•›G•GŒ™™–™a {ŒG“ˆžGšGˆ•G–œ™šG“ˆžSG•–›GˆGžˆŽŒG“ˆžbG›ŒG—™–š–•G –™G –Œ™›”ŒG ž–™’G ˆ•‹G ŒŸ›™ˆG —ˆ G ‰Œ•ŽG ”Œ™Œ“ G ›–G ˆ““–žG ˆG “”›Œ‹G ˆ•‹G ™Œˆš–•ˆ‰“ŒG “ŒŸ‰“› G •G ›”ŒG –G œ•œšœˆ“G ‰œš•ŒššG—™Œššœ™ŒUG {ŒGŠ–•‹›–•šG•Gv™ŒŽ–•SG žŠG”œš›G ‰ŒGŠ–•š‹Œ™Œ‹G•G—ˆšš•ŽG–•G›ŒG“ˆžSGš–žG›ˆ›G›šG”œš›G‰ŒG š–Gš•ŠŒG–Œ™G`ZG—Œ™GŠŒ•›SG–GŒ”—“– Œ™šG•‹G›Gœ•—™–›ˆ‰“ŒG ›–G Œ”—“– G ”Œ•G ‰Œ –•‹G ›Œ•G –œ™šG ˆ›G •–™”ˆ“G —ˆ UG zœŠG —™–š–•šG–™GŽŒ™G™ˆ›ŒšG–™G–Œ™›”ŒGˆ™ŒGŠ–””–•G•G›ŒG ™ŒŽœ“ˆ›–•G –G –œ™šSG ˆšG šG š–ž•G ‰ G ›™ˆ‹ŒG ˆŽ™ŒŒ”Œ•›šG •G ›šG Š–œ•›™ G ˆ•‹G •G l•Ž“ˆ•‹UG {Œ G ˆ™ŒG •ŒŠŒššˆ™ G ›–G —™ŒšŒ™ŒG›ŒG™ŒŽœ“ˆ›–•U {ŒG ššœŒG Š–•ŠŒ™••ŽG ›ŒG ˆ“‹› G –G ›ŒG “ˆžG —™ŒšŒ•›šG ›ŒG ˆ”“ˆ™G ŠˆšŒG –G ˆ——“Šˆ›–•G ˆ•‹G ‹Œ“”›ˆ›–•G –G ˆŠ³ ŠŒ—›Œ‹G—™•Š—“ŒšUG {ŒG“‰Œ™› G–G›ŒGm–œ™›ŒŒ•›Gh”Œ•‹³ ”Œ•›GšGšŒ›G œ—GˆŽˆ•š›G ›ŒG—–“ŠŒG—–žŒ™G–GˆG z›ˆ›ŒUG {ŒG ‰–œ•‹ˆ™ŒšG ”œš›G ‰ŒG ‹™ˆž•G •G ŒˆŠG š—ŒŠŠG ŠˆšŒSG •–›G ‰ G ™Œš–™›G ›–G ›Œ–™ G ˆ•‹G ˆššœ”—›–•SG ‰œ›G •G ›ŒG “Ž›G –G ŒŸ³ —Œ™Œ•ŠŒSG Ž™ˆ•›•ŽG ›–G ›ŒG “ŒŽš“ˆ›œ™ŒG ›ŒG œ•Š›–•G –G ‹š³ ŠŒ™••ŽSG ‹Œ›ŒŠ›•ŽGˆ•‹G™Œ”Œ‹ •ŽG›ŒGŒ“šGžŠG”ˆ G‰ŒG –‰š›ˆŠ“ŒšG ›–G ›ŒG ˈ Ž™Œˆ›Œ™G —œ‰“ŠG žŒ“ˆ™ŒˉG Oyˆš›G UG }ˆ•G kŒ”ˆ•ˍGMG sŒžšG j–USG Y[WG |UG zUG Z[YPG ˆ•‹G œ—–“‹•ŽG ›šG ‘œ‹Ž”Œ•›GG•G›ŒG“Ž›G–GŒŸ—Œ™Œ•ŠŒG›ŒG‘œ‹Ž”Œ•›GšŒŒ”šG •–›G ˆ™‰›™ˆ™ G –™G žˆ•›–•UG lŸ—Œ™Œ•ŠŒG •G l•Ž“ˆ•‹G ”–š›G š›™’•Ž“ G‹š—Œ““Œ‹G ›ŒG–“‹G›Œ–™Œ›Šˆ“G–——–š›–•G›–G“”³ ›ˆ›–•G–G›ŒG–œ™šG–G“ˆ‰–™Gˆ•‹G›ŒG—™ŒŒ™Œ•ŠŒG–™Gœ•Œ›³ ›Œ™Œ‹G •‹‹œˆ“G Š–”—Œ››–•G ˆšG ˆ•G ŒŠ–•–”ŠG —™•Š—“ŒUG {ŒG”ˆ››Œ™GˆšG•–žGŠ–”ŒG›–G‰ŒG“––’Œ‹G –•G•–G“–•ŽŒ™GˆšGˆG ”Œ™ŒGŠ–•›Œš›G‰Œ›žŒŒ•GŠˆ—›ˆ“Gˆ•‹G“ˆ‰–™SG ‰œ›GˆšGˆGŠ–•ŠŒ™•G –G›ŒGz›ˆ›ŒGˆšGˆ•G–™Žˆ•ŠGž–“ŒUG {ŒG˜œŒš›–•SG›Œ™Œ–™ŒSG šG •–›G žŒ›Œ™G ›ŒG z›ˆ›ŒG Šˆ•G ™ŒŽœ“ˆ›ŒG –œ™šG –G “ˆ‰–™G •G ”–‹Œ”G •‹œš›™ SG ‰œ›Gžˆ›G Œ“šG ˆ™ŒG”ˆ•Œš›SG ˆ•‹G žˆ›G ›Œ•‹Œ•ŠŒšG ˆ™ŒG ‹šŠ“–šŒ‹SG ›ˆ›G —™ŒšŒ•›G ˆG ™Œˆš–•ˆ‰“ŒG Œ“‹G –™G“ŒŽš“ˆ›ŒG™Œ—™Œšš–•bGžˆ›G™Œ”Œ‹ŒšGˆ™ŒGˆˆ“ˆ‰“ŒG›ˆ›G —™ŒšŒ•›G ˆG ™Œˆš–•ˆ‰“ŒG Œ“‹G –™G “ŒŽš“ˆ›ŒG Œ•Š–œ™ˆŽŒ”Œ•›U

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Y[ZG|UGzU

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{ŒGŒ–™›G›–G Œš›ˆ‰“šG›ŒG™Ž›G›–G “Œšœ™ŒGžˆšG ˆG ‹š›•Š›ŒG”–Œ”Œ•›G–G›ŒG••Œ›ŒŒ•›GŠŒ•›œ™ SG ˆŠ³ Š–”—ˆ• •ŽG›ŒG ‹ŒŒ“–—”Œ•›G–G”ˆŠ•Œ™ UG p›G ˆš³ šœ”Œ‹Gw™–›Œˆ•G–™”šSGˆ”–•ŽG–›Œ™šG›ˆ›G–Gzœ•‹ˆ G ™Œš›SG ›ŒG zˆ›œ™‹ˆ G ˆ“T–“‹ˆ SG kŒŠ–™ˆ›–•G kˆ SG sˆ‰–™Gkˆ SGs•Š–“•˅šGi™›‹ˆ SG~ˆš•Ž›–•˅šGi™›³ ‹ˆ SG z›UG wˆ›™Š’˅šG kˆ SG n––‹G m™‹ˆ SG ˆ•‹G lˆš›Œ™UG {ŒG Œˆ™“ G Š“–š•ŽG –G ›ŒG š›–™ŒšSG žŒ™ŒŒ™G ˆŠŠ–”³ —“šŒ‹SGšG–•ŒG™Œšœ“›G–G›šGŒ–™›UG {ŒG—™–‰›–•G –G›ŒGž–™’G–Gž–”Œ•Gˆ•‹G”•–™šG ˆ›G•Ž›GžˆšG ˆ•G ”—–™›ˆ•›Gˆš—ŒŠ›G–G›ŒG”–Œ”Œ•›SGˆ•‹G›ŒGŒ–™›G–•G ‰Œˆ“G –G Š“‹G “ˆ‰–™G “ŒŽš“ˆ›–•G šG “ˆ™ŽŒ“ G ‹™ŒŠ›Œ‹G ›–žˆ™‹šGšŒŠœ™•ŽG–œ™›ŒŒ•G™ŒŒG Œˆ™šG–™GšŠ––“Gˆ•‹G ž–“Œš–”ŒG Ž™–ž›G ‰Œ–™ŒG Š“‹™Œ•G Œ•›Œ™G œ—–•G ›ŒG “ŒG –G š›Œˆ‹ G ž–™’UG p•G ›šG ”–š›G ™“ŒG –™”SG ›ŒG Œ–™›G›–GŒš›ˆ‰“šG›ŒG™Ž›G›–G“Œšœ™ŒGžˆšG’•–ž•GˆšG ›ŒG ›Œ•G –œ™šG ”–Œ”Œ•›SG ˆ•‹G “ˆ›Œ™G ˆšG ›ŒG ŒŽ›G –œ™šG ”–Œ”Œ•›U h”Œ™ŠˆGˆ•ŽG—™–‹œŠŒ‹G•–GŽ™Œˆ›G—“ˆ•›™–—ŠG “Œˆ‹Œ™G‹Œ–›Œ‹G›–GšŒŠœ™•ŽG“Œšœ™ŒG–™G›ŒG –œ•ŽGˆ•‹G ‹ŒŒ•šŒ“ŒššG ž–™’Œ™šSG •–G s–™‹Gzˆ›Œš‰œ™ SG ›ŒG›ˆš’G –G Œš›ˆ‰“š•ŽG ›Œ™G ™Ž›G žŒ•›G ‰ G ‹Œˆœ“›G ›–G ›ŒG ›™ˆ‹ŒGœ•–•šSG›–Gž–”GšG‹œŒG›ŒGŠ™Œ‹›G–™Gˆ““GŠ“‹G “ˆ‰–™G“ŒŽš“ˆ›–•G—™–™G›–G›ŒG Œˆ™G X__`UG u–žSG–žT 105

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XWW

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‰ G›™ˆ‹ŒTˆŽ™ŒŒ”Œ•›šUG p›G™Œ˜œ™ŒšGŠœ“›ˆ›–•G–G›ŒG ”ˆŽ•ˆ›–•G ›–G Œ•ˆ‰“ŒG ž–”Œ•G ›œšG –™›œ›–œš“ G Œ•³ ‹–žŒ‹G ž›G “Œšœ™ŒG ›–G —Œ™ŠŒŒG ˆ•G –™Žˆ•ŠG ™Œ“ˆ›–•G ‰Œ›žŒŒ•G ›Œ™G –ž•G —–ššŒšš–•G –G ›G ˆ•‹G ›ŒG —™–³ ‹œŠ›ŒGˆŠ›› G–G–›Œ™Gž–”Œ•SGˆ•‹G–GŠ“‹™Œ•SG•G ›ŒG ”ˆ•œˆŠ›œ™ŒG ˆ•‹G ‹š›™‰œ›–•G –G ”ˆ• G ›•ŽšG žŠGžŒ™ŒG –™”Œ™“ G—™Œ—ˆ™Œ‹Gž›•G›ŒG–”ŒbG›–G ”ˆ’ŒG ›ŒG Š–••ŒŠ›–•G ‰Œ›žŒŒ•G ›šG ™ŒŒG Ž›G –G ›ŒG •ŒžG•‹œš›™ˆ“G–™‹Œ™G›–G›Œ”šŒ“ŒšGˆ•‹G›ŒGš›™œŽŽ“ŒG –G ›ŒG Žˆ™”Œ•›Tž–™’Œ™šSG –™G •š›ˆ•ŠŒSG ›–G šŒŠœ™ŒG ‰ G –™Žˆ•¡ˆ›–•Gˆ•‹G›™ˆ‹ŒGˆŽ™ŒŒ”Œ•›šSGˆ•‹G‰ G š›ˆ›œ›ŒšSG ›ŒGˆššœ™ˆ•ŠŒG›ˆ›G›ŒG•ŒŒ‹“ŒTž–™’Œ™šG•ŒŒ‹G•–›Gž–™’G ”–™ŒG›ˆ•G ŒŽ›G–œ™šG •G –•ŒG‹ˆ UG {ŒG Š–•‹œŠ›–™G –GˆG™ˆ“žˆ G›™ˆ•GˆšG™ŒŽœ“ˆ™Gˈ™œ•šˉGœ—–•GžŠGŒG Šˆ•GŠ–œ•›G•Gˆ‹ˆ•ŠŒSGˆ•‹G•GˆŠŠ–™‹ˆ•ŠŒGž›GžŠG ŒG ˆ™™ˆ•ŽŒšG šG šŒˆš–•šG –™G š“ŒŒ—•ŽSG Œˆ›•ŽG ˆ•‹G ™ŒŠ™Œˆ›–•UG ošG žŒG Œ•‘– šG ›ŒG “Œšœ™ŒG žŠG ˆšG Š–”ŒG ›–G Œ™G œ•š–œŽ›UG oŒG Šˆ•G œ•‹Œ™š›ˆ•‹G ›ŒG Œ–™›G–G›ŒGŽˆ™”Œ•›Tž–™’Œ™šG›–G”ˆ•›ˆ•G›Œ™G–™³ Žˆ•¡ˆ›–•G•G›šG”–š›G”“›ˆ•›G–™”SG‰ŒŠˆœšŒGŒGˆš³ šœ™ŒšG›ŒG—Œ™”ˆ•Œ•ŠŒG–GšG–ž•G“Œšœ™ŒG‰ GŒ“—•ŽG ›–Gšœš›ˆ•GšG–ž•G–™Žˆ•¡ˆ›–•Gž›G›šG›™ˆ‹ŒGˆŽ™ŒŒ³ ”Œ•›šUG iœ›GšG žŒG Šˆ••–›G š–G ™Œˆ‹“ G œ•‹Œ™š›ˆ•‹G –™G š ”—ˆ›¡ŒG ž›G ›ŒG ”–›ŒG –G ›ŒG Žˆ™”Œ•›TG ž–™’Œ™šSG‰ŒŠˆœšŒG›ŒG“Œšœ™ŒGžŠG‹š›•ŽœšŒšGŒ™G ™–”G Œ™G Ž™Œˆ›TŽ™ˆ•‹”–›Œ™G ˆšG Š–”ŒG ›–G Œ™G ›™–œŽG•–G Œ–™›G–GŒ™G–ž•SG‰œ›Gˆœ›–”ˆ›Šˆ““ G‰ G ›ŒG •›™–‹œŠ›–•G –G ”ŒŠˆ•Šˆ“G ”—™–Œ”Œ•›šG ˆ•‹G ‰ G›ŒGŒŸ–‹œšG–G›ŒG•‹œš›™ŒšG ™–”G›ŒG–”ŒUG p›G ”ˆ G‰ŒGœ™ŽŒ‹G›ˆ›G›ŒG“Œšœ™ŒG–G—™–š—Œ™–œšGž–”Œ•G šG –•“ G ˆ——ˆ™Œ•›bG ›ˆ›G ŒˆŠG ”—™–Œ”Œ•›G ˆšG Œ•³ ›ˆ“Œ‹G™ŒšG‹œ›ŒšG–Gˆ‹”•š›™ˆ›–•bG›ˆ›G›ŒGš›ˆ•‹T 114

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ard of living has been so raised that their time is as fully occupied as it ever was. From the economic point of view, however, the new occupations are distinctly of the leisure type,— not of any recognized productive or distributive type. To the credit of women of the prosperous class it must be said that, within recent years, many of them have been making active and intelligent efforts to establish legal claims to leisure for children and for women industrially employed. The Saturday halfholiday, the summer vacation for clerks, the child labor laws, and the prohibition of work at night for women and children have had no more faithful advocates among the wage-earners themselves than among members of the Consumers’ League, the Church Association for Improving the Condition of Labor and the women’s clubs. Just in proportion as women who enjoy leisure in their homes come to see how far they owe that enjoyment to the work of other people, and to recognize the just claims of those others to a share of leisure, may we reasonably expect that the number and effectiveness of such organizations will multiply. And it will appear in the course of the present discussion that the need for such organizations is an abiding need, aside from the maintenance of the organizations of the workers themselves. The share of credit due to these participants in the effort to establish the right to leisure is the greater because, in their capacity as housekeepers, they come into contact with precisely that portion of the working-class whose method of establishing 115

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leisure for themselves appears to be most trying. Gas-fitters, plumbers, carpenters, upholsterers, paper-hangers, plasterers, painters, and glaziers have not, on the whole, distinguished themselves, in recent years, by that sweet reasonableness which might have ingratiated them and their cause with families whose homes have needed alterations and repairs. And the ability of thousands of housemothers to rise above their personal grievances and advocate a reform the attendant disadvantages of which they have been made to feel in no gentle manner, speaks well for the intelligence and the principle of modern women. Enforced Idleness is not Leisure.— In some occupations the nature of the work to be done involves interruptions which force the workers to await the resumption of activity; and these interruptions may be welcome and beneficent, or they may be veritable paths to destruction, their effect depending upon the circumstances under which the working people are able to meet them. Thus the sailor spends weeks on land in enforced idleness through no choice of his own but because the vessel must load and unload, or must await the regular day of sailing. Jack ashore affords the classic example of the workingtnan harmed by unorganized and, therefore, unprofitable, if not actively injurious, idle time as contrasted with regular, organized, beneficent leisure. No stronger argument need be found for the statutory establishment of daily leisure for employees in all trades in which that is possible, than the evils entailed upon sailors 116

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by the impossibility of distributing their idle time in ways wholesome for themselves. The long leisure of the northern farmer’s winter, recurring and regularly prepared for, has, without doubt, contributed much to the general high level of intelligence and character among the native population of New England and the Northwest. The picture of the boy Lincoln studying by the light of the fire on the hearth gripped the imagination of the American people because it appealed to the personal experience of a multitude to whom the leisure of the hearthstone was the earliest recollection. The sharpest possible line of demarcation divides citizens whose experience includes the long country winter from those city-bred, to whom the seasons mean little more than the change from the exhaustion of summer heat to a more bracing atmosphere, the round of their work having no relation to the visible order of nature, and their leisure being assured them by circumstances unrelated to the time of year. The farmer’s family, accustomed to work without ceasing at the harvest, as they rest at length during the winter (both experiences being dictated by the nature of the work to be done and the season of the year, over which they have no control), cannot readily understand why thousands of tailors should strike for months together, at the height of the season, in the hope of working an hour a day less throughout the following year. Yet it is by no means accidental that, in the garment-trades, strikes habitually have to do with the maintenance of a trade organization, or with the 117

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hours of labor, because the garment-workers, more than any other wage-earners, suffer the disadvantages both of overwork and of unemployment. The garment-workers endure the “dull season” because garments vary with the season and orders are “slack” or “rush” without reference to the preference of the needle-workers. One part of their year brings with it overwork such as occurs in no other occupation, while another entails idleness on the hardest terms known to modern industry. The tailors’ long struggle to distribute their work over the longest possible series of weeks, by shortening each working day to ten, nine, or eight hours is, in essence, a struggle to attain reasonable leisure in place of deadly haste followed by weeks or months of corroding idleness. While the winter leisure of the farmer is made safe by the assured supplies of food, fuel and shelter prepared in advance for the season’s need, the annually recurring dull season in the garment-trades is a period of anxiety and suffering, when the grocer’s bill grows as large as his good will ventures to permit, and eviction from their tenementdwelling is a calamity to be expected and endured by the garment-workers’ families as the fortune of war. In this there is no element of wholesome leisure. The words “dull season,” originally referring to the state of the trade from the employers’ point of view, describe but faintly the black despair which that season, under the sweating-system, involves for the workers in the garment-trades. In the needle-trades half the employees are wom118

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en, young, non-voting, temporary members of the body of wage-earners pending marriage or disability. No part of the industrial army grows so rapidly as the contingent of young girls between fourteen and twenty years of age; and no part is so void of initiative for its own welfare, so unfit to assert or maintain any right. Beginning work at the age of folly, they readily accept as the regular working day ten hours in twenty-four, increasing this to any length allowed by the statutes, and working frequently without extra pay merely under the threat of dismissal in case of their refusal. Of their own initiative, these young needle-workers would never secure the half-holiday, a summer vacation with or without pay, or even the enforcement of the legal restriction upon their regular working time. They are a perpetual hindrance to the efforts of the men who work with them to secure stable employment and reasonable leisure. Overwork seems to come to these girls as blindly as leisure has befallen the women in the well-to-do households. In the needle-trades, the effectual establishment of the legal working day and working week serves, wherever this has been.accomplished, as for instance, in Massachusetts, to mitigate both the enforced overwork and the enforced idleness which characterizes those trades when left to the free play of industrial forces. Where the working time is effectively limited, preparations are made systematically, in advance of the height of the season, for meeting the coming pressure. Space and machinery are provided, and extra hands are trained, by 119

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preparing stockwork, for the finer work to be demanded of them later. Thus some of the unemployed are temporarily absorbed into the regular industrial army, and the contrast between the extremes of the seasons is mitigated. It is evident upon close acquaintance that in the garment-trades the injurious differences of season are only in part due to the conditions inherent in the trades themselves. They are not like the midwinter cold and midsummer harvest heat in the experience of the farmer. They are far more subject to control than the managers of the industry have ever been wiling Lo admit. Moreover, the general purchasing public has vastly more power of initiative, control and restraint than it has ever been aware of, by means of the placing of “rush” orders, on the one hand, and of voluntarily regulating the times of its buying on the other. This has already been indicated in the matter of Christmas shopping and its bearing upon the cruel overwork of children at that season. The garment workers are not so obviously present as the children in the stores, and it requires, therefore, more sympathetic imagination to enable the shopping public to make the connection between the excessive exertion which alternates with ruinous idleness of the machine workers, and its own heedless crowding of the shopping season into a few weeks in the spring and fall. Increased Speed Calls for Leisure.— In the capacity of inspector for the National Consumers’ League it has been the fortune of the writer to visit and inspect a large number of factories in the 120

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stitched muslin underwear trade during the past five years. In the course of that time there has occurred a development of machinery so significant in its consequences as to seem worth describing somewhat at length as a concrete illustration of the process which is discussed more abstractly throughout the present chapter. In all the best factories ;within this trade the speed of the sewing-machines has been increased so that they set, in 1905, twice as many stitches in a minute as in 1899. Machines which formerly carried one needle now carry from two to ten, sewing parallel seams (for bones in waists, or for tucks, or merely for decorative itching). Thus a girl using one of these machines is now responsible for twice as many stitches at the least and for twenty times as many stitches at most, as in 1899. Some girls are not capable of the sustained speed involved in this improvement, and are no longer eligible for this occupation. Those who continue in the trade are required to feed twice as many garments to the machine as were required five years ago. The strain upon their eyes is, however, far more than twice what it was before the improvement. In the case of machines carrying mul-r tiple needles this is obvious; but it is true of the single-needle machines also. It is the duty of the operator to watch the needle so intently as to discern the irregularity caused by a broken thread or broken needle, and to stop the machinery by pressing an electric button before any threads are cut by the broken needle, or any stitches of the seam are omitted because of the broken thread. Now, when 121

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the needle set twenty-two hundred stitches a minute, as was the case in 1899, the writer, whose eyes are unusually keen, could see the needle when the machine was in motion. A t the present speed, the writer, whose eyes have remained unimpaired, is wholly unable to see the needle, discerning merely the steady gleam of light where it is in motion. To meet this difficulty, which occurs regularly in the case of the operatives, it is now the custom to suspend an electric light directly above the machine, so that a ray strikes the needle. The strain upon the eyes of the operators is almost intolerable, and a further winnowing-out of the women eligible for this occupation follows the introduction of the present method of lighting. It is reasonable to inquire what benefit accrues to a machine operator who completes twice as much work in 1905 as in 1899, and the writer has made this inquiry whenever opportunity has offered. On the whole, it appears that there has been no proportionate gain for the operator. If all the gain that is made by the improvement in the machines went to the operators in the form of increased wages, it is doubtful whether it would be compensation for the additional strain upon their eyes and nerves. But no such share of gain falls to them. Their wages are calculated upon the same basis as in 1899, namely, that employees of the required speed and skill can be obtained in the required number for six dollars a week, irrespective of their output of work. In conversation with employers the writer is assured, from time to time, that piecework prices are 122

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regularly calculated to afford a total of six dollars a week for skilled workers, the stock phrase being: “If a girl cannot earn six dollars a week at machine work after she has been doing it from six weeks to three months, she is not adapted to the work, and it is better to put another girl at her machine.” On the part of the girls the statement is very generally made that, in places in which the supply of help is abundant, the proportion of girls receiving less than six dollars is kept large by constantly changing hands, dismissing those whose wages are growing higher with increasing skill, and taking on beginners. Combined with this constant changing goes a frequent rearrangement of piecework prices, such that only a small minority of the girls in a factory ever rise above the dead level of six dollars a week, the same sum that was paid in 1899 f°r work now done. One skilled worker who left a factory for four years and returned to the same machine which she had left, found it speeded up to double its former capacity. Her work was doubled, but her wages increased only from six dollars a week to seven, though she was one of the most skilled persons in her trade, an experienced, strong, willing operator. This girl was asked who, in her opinion, profited by the doubling of the output of her machine. In reply she said: “ I get a dollar a week more. The company makes something out of the improvement, or they would not have made it. But there have been so many cuts in prices that the company don’t get as much as you’d think for doubling the speed 123

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of the machines. I guess the people that buy the garments must get most of the difference; they can get so many more garments for the same money.” There is no doubt that this sewing girl was entirely correct in her estimate of the effects of doubling her work. The purchaser, in the long run, profits by every improvement in machinery and in the speed of the workers. But the girls who stitch underwear are not only working the same number of hours as in 1899; they are wearing themselves out at a rate of speed such that the term of their whole working-life must inevitably be greatly shortened. The nervous energy required from day to day is more than can be supplied by the free time between one day’s work and the next. A phrase in which they commonly describe the experience of girls who have dropped out of the trade tells the whole story: “ She got too slow,— she couldn’t keep up with her machine any longer.” There is no immediate prospect of any material improvement in the money wages paid to operators in this trade; for the employers have at command, not only tenement-house workers and institutions maintained out of the public funds and, therefore, willing to do sewing for merely nominal compensation; they have also the pupils of the many charitable and reformatory schools which persist in preparing every available girl for this most undesirable of all skilled occupations. Since the wages of the sewing machine operators are determined, not primarily by the amount of their output, but by many other considerations (the pressure of the tenement124

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house workers, the institution workers, and the recruits in the trade sent out from the institutions, etc.), there seems to be no need to fear that they would lose in wages if their hours of labor were reduced by the enactment of a statute restricting their working time to eight hours in one day and forty-eight in one week. In the interest of their health this change appears to be indispensably necessary. It has been, however, impossible for them to make any permanent improvement in the conditions of their employment by unaided effort of their own. There is no inclination visible on the part of employers to reduce the hours of work. On the contrary, the manufacture of stitched white muslin underwear has become as completely a season trade as the preparation of Christmas tree decorations or Easter bonnets. Meanwhile, the number of years during which a girl can continue to earn a living at a sewing machine diminishes with every improvement in her machine. Methods of Establishing the Right to Leisure. — By the education of public opinion something has been accomplished towards establishing leisure in certain occupations. Thus an appeal has of late been made, with promise of increasing success, to the more kind-hearted and conscientious among the stockholders of Southern cotton-mills to vote their stock in ways calculated to obtain more humane hours of labor for the women and children employed in those mills. The hours of labor of the clerks and cash children in the stores of many cities have been improved in consequence of the efforts of the Con125

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sumers’ Leagues in some places, and of the Retail Clerks’ Protective Associations in others, to induce the shopping public to exercise consideration of the employees in arranging the hours of shopping. The cigar-trade has long enjoyed the benefits of the short working day by reason of the relatively successful effort of the cigarmakers to apply in practical form the principle which all trade unionists acknowledge, and upon which thousands of them conscientiously act. Millions of dollars have been spent in advertising their label; cigars bearing it are made only in shops in which the working day is limited to eight hours; and working men of all trades have taken the trouble to give the preference in buying the cigars thus recommended. Here, therefore, the establishment of leisure for the workers has been accomplished by the effort of the workers themselves. The limitations inherent in this method appear, however, when certain large employers, selling cigars to customers not interested in the subject, employ young girls who are not part of any organization, and can be induced to work as long as the law allows. It is an interesting and significant fact that the organizations mentioned as using this method are among the most persistent advocates of legislation restricting the hours of labor, acting on the principle that not one but all methods of protecting the workers in their right to leisure must be followed, and taught by experience how far more effective is their effort when directed towards the enforcement of statutes than when confined to persuasion alone. 126

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NOTES LEG ISLA TIV E CONTROL OF W OM EN’S W ORK The assumption of control over the conditions under which industrial women are employed is one of the most significant features of recent legislative policy. In many of the advanced industrial communities the state not only undertakes to prescribe a minimum of decency, safety, and healthfulness below which its wage-earners may not be asked to go, but takes cognizance in several ways of sex differences and sex relationships. It is evident, for example, that the presence of women in certain places or at certain times creates a situation probably immoral or disorderly, with which the state, in the interests of propriety, may interfere. To this end, there is legislation in some of the states, forbidding the employment of women, other than members of the family of the employer, in bar-rooms and liquor saloons. Again, it is well known that the unregulated mingling of men and women under conditions of darkness, fatigue, or the excitement due to the constant apprehension of danger may give rise to immoral intercourse. On this account we find women generally prohibited from working in mines, and sometimes from other forms of employment at night. In the third place, the state sometimes takes cognizance of the peculiarly close relationship which exists between the health of its women citizens and the physical vigor of future generations. Without reference to the general merits of the eight-hour-day question, or to the desirability of increasing the leisure of the industrial classes for the sake of their economic or social uplifting, in a number of states — and those the most advanced in industrial development as well as in ways that may be called cultural and spiritual — it has been declared a matter of public concern that no group of its women workers should be allowed to unfit themselves by excessive hours of work, by standing, or other physical strain, for the burden of motherhood which each of them should be able to assume. Such legislation is usually called “ protective legislation ” and the women workers are characterized as a “ protected class.” But it is

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obviously not the women who are protected. For them, some of this legislation may be a distinct limitation. For example, the prohibition against work in mines or against night work may very well so limit the opportunities of women to find employment as to result in increased congestion and decreased wages in such other occupations as are open to them. Because of the smaller number of women industrially employed, and because of the survival in present-day notions of the mediaeval idea that where unsuitable conditions of intercourse between the sexes exist it is the women whose presence is the disturbing factor, for these two reasons it is not unnatural, and may be most desirable, to exclude women from these forms of employment. But no one should lose sight of the fact that such legislation is not enacted exclusively, or even primarily, for the benefit of women themselves. And in the case of the limitation of hours or demand for a standard of decency and comfort higher than that prescribed for men workers, if the regulation does not handicap women in their competition with men or reduce the amount paid to them in wages,1 it is because, in the first place, women so rarely compete with men,2 because, also, the lack, among women workers generally, of any effective standard of life, or professional standard of work, or of any power of organization, renders their labor so easily the subject of exploitation that there is generally a considerable margin of advantage to the employer in the use of women’s labor, which it is more profitable to share with the worker in the creation of more favorable conditions of work, than to forego altogether by employing men.3 Finally, the improved conditions of work may attract a higher grade of labor which can and does obtain as high wages under the favorable conditions because worth enough more to the employer to make good the expenditures required. While this legislation may “ protect ” women workers against certain forms of brutality and greed on the part of employers, and while it may “ protect ” some women against the competition of others of lower standards and seemingly greater need, it is still to be borne in mind that the object of such control is the protection of the physical 1 For evidence that it does not, see Wood, “ Factory Legislation Considered with Reference to the Wages of the Operatives Protected Thereby,” Journal Royal Statistical Society, 1902, p. 302. 2 Webb, Problems of Modern Industry, 8 Webb, op. cit.,

chap. iii.

chap. iv.

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well-being of the community by setting a limit to the exploitation of the improvident, unworkmanlike, unorganized women, who are yet the mothers, actual or prospective, of the coming generation. The effectiveness with which this power of control is assumed and exercised is one standard by which the community must judge itself and be judged of others.4 And that such a test may be applied intelligently to the different sections of the United States an analysis of the laws now in force in the different states is presented. This analysis is based upon the Tenth Special Report of the Commissioner of Labor (1904), supplemented by reference to such legislation as was enacted by the various state legislatures during the past two winters. It is therefore a summary of laws relating to the employment of women now in force in the United States. S. P. B r e c k i n r i d g e . U

n iv e r s it y

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STA TU TO R Y REGULATION OF W OMEN’S E M PLO YMENT— CODIFICATION OF STATU TES TA BLE A.

STATUTES PROHIBITING T H E EM PLO YM EN T OF W OMEN

I. In mines, smelteries and collieries. 1. States prohibiting the employment of women, a) In mines: Alabama ( Code of 1897, chap. 78, §2933) ; Arkansas ( Digest of 1894, chap. 109, § 5051) ; Colorado {Mill's Annot. Stat., chap 85, § 3185) ; Illinois ( Coal Mine Reg., Act of 1899, § 22) ; Indiana (Rev. Stat. ip oi, chap. 81, § 7480) ; Maryland (Acts of 1902, chap. 124, § 209); Missouri (Rev. Stat. 1890, chap. 133, § 8811) ; Pennsylvania (Brightly*s Digest, 1895, p. 979, § 3) ; Utah (Rev. Stat. 1899, title 36, § 1338) ; Washington ( Mine Reg., title 18, § 3172) ; West Virginia ( Code of 1899, Mine Reg., § 13) ; Wyoming (Constitution, Art. 9, § 3). b) In or about mines: Alabama (supra) ; Illinois (supra). c) In mines and smelters: Utah (supra). d) In coal, iron, or other dangerous mines: (supra).

Wyoming

4 For laws on this subject in force in other countries than the United States see Report of the Industrial Commission X V I , pp. 23 , 36, 52 .

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2. States which forbid women, a) To enter mines for the purpose of working therein: Arkansas (supra) ; Maryland (supra) ; Missouri (supra)) Washington (supra). b) To work in mines: Colorado (supra)] Indiana (supra) ; West Virginia (supra). II. In bar-rooms, concert halls, etc. I. The following states and territories prohibit the employment of women in selling or handling intoxicating drinks, or working in places where they are handled or sold. Alaska: Women are forbidden to dispense intoxicating liquors. Acts of Congress 1898-99, chap. 429, title 2. Iowa: Employment of females prohibited in all places where intoxicants are sold. Code of 1897 and Supp. of 1902, § 2448. Louisiana: Employment of females prohibited in selling, distributing, or taking orders for intoxicants in saloons or concert halls. Act of 1894, No. 43, § 1. Maryland: Unlawful to employ females in theaters, museums, or other places of amusement for the purpose of selling, serving, receiving orders, or paying for spirituous, malt liquors, wines, lager-beer, or any other refreshments, or merchandise. This law applies to Baltimore only. Code of 1903, art. 27, § 371. Michigan: Females are forbidden to act as bar-keepers or to serve liquors, to furnish music, or to dance in a saloon, or bar-room where intoxicants are sold. Exception is made to a member of the family. Compiled Laws of 1897, chap. 137, § 5361. Missouri: No female may be employed as a servant bartender, waiter, dancer, or singer in a dramshop or place where spirituous liquors are sold. Exception is made to a member of the family. Rev. Stat 1890, chap. 15, §2185. New Hampshire: Unlawful to permit any girl or woman to serve or sell any liquor on the premises where [liquor is sold]. Acts of 1903, chap. 95, § 17. New York: Law similar to that of New Hampshire, but that member of family is excepted. Acts of 1903, § 486. Vermont: Women may not be employed on premises, or in rooms in which a liquor license is operated. An exception

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is made in case of hotels, common victualers, and drugstores. Stat. of 1894, Act No. 90, § 24. Washington: Employment of women prohibited in all places where intoxicants are sold. General Statutes, title 39, §7258. III. In operating and cleaning dangerous machinery. 1. States which prohibit the employment of women in operating, or cleaning certain machinery, or from being employed where certain machinery is used. Connecticut: No machinery other than steam engines in a factory shall be cleaned while running after notice forbidding the same is given by the inspector to the owners or operators of the factory. Statutes of 1902, chap. 250, § 4515Missouri: No minor or woman shall be required to clean any part of the mill, gearing, or machinery in any such establishment in this state, while the same is in motion, or work between the fixed or traversing parts of any machine, while it is in motion by the action of steam, water, or other mechanical power. Rev. Stat. of 1890, chap. 91, § 6434. New Jersey: The statute is almost identical with that of Missouri. Gen. Statutes 1895, p. 2345, § 30. West Virginia: No minor or female of any age shall be permitted to clean any of the mill gearing or machinery [in all manufacturing, mechanical and other establishments] while the same is in motion. Rev. Stat. 1901; chap. 19, § 1. New York: No male child under eighteen years of age nor any female shall be employed in any factory in this state in operating or using any emery, tripoli, rouge, corundum, stone, carborundum, or any abrasive, or emery polishing or buffing wheel, where articles of baser melals or of iridium are manufactured. As amended by chap. 561, Acts of 1903, § 92. TABLE B.

STATUTES REGULATING T H E WORKING T IM E OF WOMEN

I. Hours of labor limited.1 1. States in which the hours of labor of females are limited, 1In nearly all the states the provisions which relate to women also apply to children.

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а) In factories, workshops, mechanical and mercantile establishments: Colorado (to 8 hours a day. Acts of 1903, chap. 138, § 3) ; Massachusetts (to 10 hours per day or 58 per week. Acts of 1904, chap. 397, § 23) ; Connecticut (to 10 hours per day or 60 per week. General S tat, chap. 273, §4691) ; Nebraska (to 10 hours per day or 60 per week. Comp. Stat of 1901, chap 23, § 6942a) ; Washington (to 10 hours per day. Acts of 1901, chap. 68, § 1) ; Pennsylvania (to 12 hours per day, or 60 per week. Brightly’s Digest, 1893-1903, p. 62,

§ 13) ; Michigan (to 10 hours per day or 60 a week. Act applies only to females under twenty-one years of age» Acts of 1901, Act No. 113, § 1). б) In factories and mercantile establishments: New York (to 10 hours per day or 60 hours per week, for all females in factories and for females sixteen to twentyone years of age in mercantile establishments. Exceptions are made in case of mercantile establishments from December 15 to January 1. Rev. Stat 1901, § 161) ; Colorado (to 8 hours per day in factories, stores, and other places where the nature of the work requires them to stand. Acts of 1893, chap. 113, § 1). c) In factories, workshops, and mercantile establishments : New Jersey (to 10 hours per day or 55 per week. Gen. Stat 1895, §§ 66, 67) ; Rhode Island (to 10 per day or 58 pier week. General Laws 1896, chap. 198, § 22) ; Louisiana (to 10 per day or 60 per week. Acts of 1902, Act No. 49, § 41) ; Maine (to 10 per day or 60 per week. Rev. Stat 1903, chap. 40, § 48) ; New Hampshire (to 10 per day or 60 per week. Pub. Stat. 1891, chap. 180, § 14) ; Oregon (to 10 per day. Acts of 1903, § 1) ; Virginia (to 10 per day. Acts of 1889-90, chap. 193, § 1) ; Maine (to 10 hours per day. But women eighteen years of age and over may work longer than 10 hours per day, but not to exceed 6 hours in one week, or 60 in any one year. Rev. Stat. 1903, chap. 40, § 49) ; Maryland (to 10 hours per day in establishments manufacturing cotton and woollen goods. Code 1903, art. 100, §1). 2. States in which female employees may voluntarily work overtime, but cannot be compelled to do so by the employer.

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North Dakota: The hours during which women may voluntarily work is unlimited, but they cannot be compelled to work in manufacturing and mercantile establishments over 10 hours per day. Penal Code, chap 71, § 7666. South Dakota: Provisions similar to North Dakota. P en a l Code, § 764. Oklahoma: Provisions similar to North Dakota. Stat. o f 1893, chap. 25, § 2550. Wisconsin: Provisions similar to above three states excepting that 8 hours constitute a day’s work in place o f 10. Annot. Stat. of 1898, chap. 83, § 1728. 3. In a number of the above states the laws also prescribe that where women are employed, a) Schedules must be posted showing the hours during which work is permitted: Connecticut (Gen. Stat. 1902, chap. 273, §4691); Maine (Rev. Stat. 1903, chap 40, § 49) > Massachusetts (Rev. Laws 1902, chap. 106, § 24) ; Nebraska (Comp. Stat. 1901, chap. 23, § 6942a) ; New Hampshire (Pub. Stat. 1891, chap. 180, § 14) 5 Rhode Island (Gen. Laws 1896, chap. 198, § 22). b) That longer hours than those prescribed may occasionally be worked per day, in order to make up for time lost on account of repairs or to allow for a shorter day at th e end of the week; but in such cases the total time worked shall not exceed that prescribed for the week’s w o r k : Connecticut (supra) ; Maine (supra) ; M a s s a c h u s e tts (Rev. Laws 1902, § 69. But see Table D. III. o f this schedule) ; Michigan (Acts of 1901, Act No. 113, § 1. Act applies only to females under 21 years of age) ; N ew Hampshire (supra) ; New York (Rev. Stat. 190 1, § 161) ; Rhode Island (supra). II. Night work. Indiana. The employment of females in factories before 6 a . m . or after 10 p. m . is prohibited. Rev. Stat. o f 190 1, chap. 81, § 7087. Massachusetts: Similar to that of Indiana. Rev. Stat. 1902, chap. 106, § 28. Nebraska: Females may not be employed before 6 a . m . or after 10 p. m . in any manufacturing, mechanical, m e r c a n tile

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establishment, hotel or restaurant. Rev. Stat. of 1901, chap. 23, § 6942a. New York: Females may not be employed in factories before 6 a . m . or after 9 p. M./and those sixteen to twenty-one years of age may not be employed in mercantile establishments before 7 a . m . or after 10 p. m ., except Saturadys, and from December 15 to January 1. Rev. Stat. of 1901, § 161. New Jersey: The period of employment of females in manufacturing establishments shall be from 7 a . m . to 1 2 m ., and from 1 to 6 p. m . every working day except Saturday, when it shall be from 7 a . m . to noon; an exception being made in case of persons engaged in preserving perishable goods in canning fruit, and in glass works. Gen. Stat. 1895, §§ 66, 67. III. Time for meals. Indiana: Not less than 60 minutes shall be allowed for noonday meal in factories and workshops. The chief inspector shall have the power to issue permits in special cases allowing shorter meal time at noon, where sufficient reasons can be shown. This act applies to male and females generally. Stat. 1901, chap. 81, § 7087k. Louisiana: (a) Women in factories, workhouse, workshop, telephone or telegraph office, clothing, dressmaking or millinery , or where any goods are manufactured shall be allowed at least one hour for dinner. As amended by Act 49, Acts af 1902, §4. ( b ) Retail establishments where female labor or female clerks are employed shall be required to give every employee each day between the hours of 10 a . m . and 3 p. m ., not less than 30 minutes for lunch and recreation. Acts of 1900, Act No. 55, § 2. By an act approved July, 1904, this provision was extended to all clerks in retail establishments in cities of more than 50,000 inhabitants, the time in such cases being lengthened to one hour. Acts of 1904, No. 195, § 1. Massachusetts: Women and young persons, five or more in number, who are employed in the same factory shall be allowed their meal time at the same hour............No such person shall be employed during the regular meal hour in tending the machine or doing the work of any other women or young persons in addition to their own. Rev. Laws 1002. chap. 106, § 36.

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Michigan: Not less than 45 minutes shall be allowed for noonday meal in any manufacturing establishment in this state. Factory inspector may shorten time in particular instances when good cause is shown. Acts of 1901, Act. No. 113, § 11. Pennsylvania: Provision similar to Michigan. Brightly's Digest, 1893-1903, p. 254, § 11. New York: Not less than 45 minutes shall be allowed women and children in mercantile establishments for noon-day meals. Rev. Stat. 1901, chap. 255, § 161. TABLE C.

STATUTES REQUIRING CERTAIN EQ U IPM EN TS IN FACTORIES, WORKSHOPS, ETC ., W H ER E WOMEN ARE EM PLOYED

I. Seats for rest when not at work. 1. States which require that seats shall be provided for female employees when not necessarily engaged in their duties, a) In factories, workshops, and mercantile establishments: California (one-third as many seats as employees. Act of February, 1889, §5) ; Colorado ( Mill's Annot. Stat., chap. 101, § 3604) ; Connecticut ( General Stat., chap. 273, §4703); Delaware (Revised Code 1853, Ed. of. 1893, chap. 127, § 1) ; District of Columbia (Acts of 1894-95, chap. 192, § 1) ; Georgia Penal Code, Div. 4, § 127) ; Indiana (Annot. Stat. 1894, Rev. 1901, chap. 5, § 2246) ; Iowa (Code of 1897, Supp. 1902, §4999) ; Louisiana (as amended by Act No. 49 [1902], §5); Massachusetts (Rev. Stat. of 1902, chap. 106, §41) ; Michigan (Laws of 1897, chap. 137, § 5373) ; Minnesota (Gen. Stat. 1894, chap. 24, § 2244) ; Missouri (Rev. Stat. 1890, chap. 15, § 1858) ; Nebraska (Rev. Stat. of 1901, chap. 23, § 6942c) ; New Hampshire (Acts of 1895, chap. 16, § 1) ; New Jersey (Gen. Stat. 1895, § 2I7) 5 New York (Rev. Stat. of 1901, §§ 17 and 170) ; Ohio (Bate's Annot. Stat. §§ 4364-69) ; Oregon (Acts of 1903, § 2) ; Pennsylvania ( Brightly's Digest, i 895, p. 902, § 1) ; Rhode Island (Gen. Laws 1896, chap 64, § 8) ; Virginia (Acts of 1897-98, chap. 53, § 1) ; Washington (Stat., title 39, §7287) ; West Virginia (Acts of 1901, chap. 19, § 4) ; Wisconsin (Acts of 1899, chap. 77, § 1) ; Wyoming (Acts of 1901, chap. 33. § 1).

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b ) In mercantile establishments only: Alabama ( Code of 1897, chap. 192, § 5512) ; Florida (Applies to both males and females. Acts of 1899, chap. 4762, § 1) ; Kansas (Gen. Stat 1901, chap. 549, § 3842) ; Maryland (Acts of 1904, chap. 287, §I47A) ; South Carolina (Code of 1902, chap. 15, § 333) ; Utah (Rev. Stat 1898,

title 36, § 1339). II. Toilet facilities, dressing-rooms, etc. 1. States which require separate, a) Water-closets and dressing-rooms: Delaware (Acts of 1897, chap. 452, § 1. Act applies to New Castle County only); Indiana (Rev. Stat. 1901, chap. 81, §7087]); Michigan (Acts of 1901, Act No. 113, § 10) ; Minnesota (Gen. Stat. 1894, chap. 24, §2254); Missouri (Rev. Stat of 1899, chap. 91, § 6440) ; New Jersey (Gen. Stat 1895, §34) ; New York (Rev. Stat 1901, §88) ; Ohio (Bates Annot S tat, §§ 4364-81) ; Pennsylvania (Brightly's Digest, 1895, p. 865, § 19) ; Rhode Island (Gen. Stat. 1896, chap. 64. §8) ; West Virginia (Acts of 1901, chap. 19, §3) ; Wisconsin (Acts of 1899, chap. 79, §7). b ) Water-closets only: California (Act of February, 1889, § 1) ; District of Columbia (Acts of 1897-98, chap. 8, § 9) ; Iowa (Code of 1897, and Supp. of 1902, § 4999a) ; Massachusetts (Rev. Scat., chap. 106, §47) ; Tennessee (Act of 1897, chap. 98, § 1). 2. States in which these requirements apply, a) To all kinds of establishments: California (supra) ; Delaware (supra) ; District of Columbia (supra); Indiana (supra) ; Iowa (supra) ; Massachusetts (supra) ; Michigan (supra) ; Missouri (supra) ; New Jersey (supra) ; Ohio (supra) ; Pennsylvania (supra) ; Rhode Island (supra) ; Tennessee (supra) ; Wisconsin (supra). b) To factories and workshops only: Minnesota (supra) ; New York (supra) ; West Virginia (supra). III. Heating of work-rooms, etc. In Delaware, in the act which applies to New Castle County, it is the duty of every person or corporation employing female

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labor to provide such places for such female employees to work in during cold weather as shall be reasonably and comfortably warm ( Acts of 1897, chap, 452, § 3). This same Act, §1, provides for separate lunch-rooms; and washing-sinks for every fifteen female employees. TABLE D.

MISCELLANEOUS LEGISLATION

I. Earnings of the married woman her separate property. Nearly every state and territory, in one form or another, provides that the earnings of a married woman shall be her separate property. II. Sex shall be no disqualification for any business, vocation, profession, or calling pursued by men: California ( Constitution, Art. 20, § 18) ; Illinois ( Starr & Curtis Annot. Stat., chap. 48, § 4; Washington (Statutes, title 18, § 3322). III. Deductions from wages of women and children prohibited. In Massachusetts deductions from the wages of women and children who are paid by day or hour, and are employed in manufacturing and mechanical establishments, for time during which machinery is stopped if said women and minors are refused the privilege of leaving the mill while the damage to said machinery is being repaired; and if such employees are detained in their work-rooms during the time of the breaking down of the machinery, they shall not be compelled to make up the time lost by such breakdown unless they are compensated therefor at the regular rate of wages (Rev. Laws 1902, chap. 106, §69). IV. Abusive language. In Delaware the law provides that it shall not be lawful for any employer of female labor, or any overseer, superintendent, or foreman, or boss of any such employer of female labor to use toward female employees any abusive, indecent, or profane language, or in any manner to abuse, misuse, unnecessarily expose to hardships, or maltreat any such female employee. Act applies to New Castle County only (Act of 1897, chap. 452, §4)V. Employment offices sending females to places of bad repute. No employment office shall send or cause to be sent any female help or servants to a place of bad repute, house of ill-fame, or

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assignation house, or to a house or place of amusement kept for immoral purposes: Colorado (Acts of 1891, § 7) ; Connecticut (Gen. Stat 1902, chap. 259, § 4608). VI. Employment of women in basements. In New York it is enacted that women and children shall not be employed or directed to work in the basements of mercantile establishments, unless permitted by the board of the department of health, or health commissioner of the town, city, or village, where such mercantile establishment is located. Such permission shall be granted unless it appears that such basement is not sufficiently lighted and ventilated and is not in good sanitary condition (Rev. Stat of 1901, p. 2114, § 171). Fr U n i v e r s i t y o f C h ic a g o

Set t l e m en t .

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ank

P. Mie s .

WOMEN WHO WORK AND WOMEN WHO SPEND By

M

a u d

N

a t h a n

,

President of the Consumers’ League, New York City.

I fear that my title implies that there are two distinct categories, and that the women who spend do not work, and the women who work do not spend. This, however, is not my inference. I merely wish to differentiate between the women whose daily occupation is spending, and who work occasionally (perhaps most when trying to spend money) and the women who work hard every day and spend money occasionally. I want to point out the relationship between the two and show, if I can, the large measure of responsibility which rests on the women who spend for some of the existing abuses and evils surrounding the women who work. Women have always worked— but not as wage earners. When they used to work in the home they passed from the kitchen stove to the spinning wheel, from the soap vat to the vegetable garden; they made the rope, the candles, the carpets, did all the spinning, weaving, knitting, cutting and sewing. They made all their own preserves, pickles, bread, pastry and confectionery. There was sufficient variety to the work to prevent monotony and tedium at least, even though the hours of work were so long that they fell asleep over their knitting needles, and arose at dawn to get their households in order. Through the ages has come down to us the adage: “ Man’s work ends with the setting sun, woman’s work is never done.” To-day, through the invention of cumbersome machinery, work has been taken out of the home and put into factories and workshops. Because the woman leaves her home to do work and becomes a wage-earner she is for the first time recognized as a working woman. In this new position her work has become far more monotonous. It may be her duty to stand all day long at a loom making but one little gesture. But the nervous strain is terrible; should she put her finger a quarter of an inch too near the machine it would be torn off; should she drop her hand from mere exhaustion, her work might be damaged and she would either lose some of her

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wages-or else perhaps lose her position. This is one reason why working women need to-day a shorter working day. The roar and buzz of machinery is deafening and nerve-racking. The air is often foul, and filled with particles of lint or wool, and because of the lack of skill or taste or intelligence required, the wage is low. If the woman works, not in a large factory, but in a tenement hovel, known as a sweat-shop, then to offset the evils described she has the fatigue of bending over a foot-power machine, she has longer hours, little light or ventilation, shorter seasons of work and lower wages. Now, in what way can the women who spend, alleviate the conditions surrounding the women who work? There seems to be little necessity to expound upon the economic truths relating to the laws of supply and demand to the members of the American Academy of Political and Social Science. Therefore, let me merely point out the fact that since there is never a supply of anything until the demand of the purchasers be felt, and since women are largely the purchasers of the household, if all the women who spend would demand that their garments, their household furnishings and their food supplies be made under wholesome conditions— wholesome to the producer as well as to the consumer— and if they made that demand sufficiently strong and with united pressure then merchants would insist upon manufacturers complying with this demand of their customers, and manufacturers would be forced to comply in order to find a market for their wares. Professor Gide, the renowned French economist, prophesied that the twentieth century would be the century to inaugurate the moral education of the consumer. Consumers have apparently begun their studies; we are at present in the primary grade. We no longer buy slaves, and during the Civil War some of the conscientious consumers even refused to buy the product of slave labor. We no longer buy our servants, as in the old days of indenture, but some of us seem to think we buy their entire time, and that they should have no interest in life outside of our households. We do not buy little children, but we still buy the product of child labor; we use underwear woven in Southern mills where tiny little children are allowed to work all night long; we wear shoes which they help to make in factories; hats which they braid; "we trim our hats with artificial flowers which they help to make in tenement rooms. We wear silk and velvet which they help to make, assisted by huge ma-

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chines which seem to be almost as intelligent and mature as the children. We use paper boxes and bags made by them; we eat candy packed by them; nuts picked by them, and we are willing to have all these things carried home to us by them, even though they arrive at a late hour at night. Perhaps after leaving the primary grade in our studies, we shall realize that we are not intelligent consumers so long as we consume our children. If the women who work are to have good results from their labor, are to labor for life and not for death— life for the nation as well as life for themselves— then they must not commence their work at an age which spells ultimate breakdown. We consumers have had some moral education. We do not buy stolen goods, but we have not pursued our course of instruction sufficiently far to enable us to restrain from buying goods, the profits of which have been stolen from the wages or overtime work of helpless working girls. We would not buy garments bearing a tag, “tenement made,” such as those tagged by the Health Department when infectious disease is found in tenement rooms where such garments are made up. But we neglect to insist that there be some label— such as the Consumers7 League label— guaranteeing that the garments have been made under sanitary and uplifting conditions. The Consumers' League label further guarantees that no child labor has been employed, and no night work exacted, and that no State factory laws have been violated. We would not buy poisons to assassinate our neighbors, but we are willing to buy wall-papers, matches and pottery which poison the producers, and we buy adulterated foods and drugs which poison the consumers. We do not buy animals to torture them, but we buy beef of cattle which before being slaughtered had been tortured almost to death on freight trains, left for days without food or drink. We do not go about ruthlessly killing little birds in their nests, but we wear aigrettes which can only be produced by capturing the mother bird when, rather than desert her little ones and leave them to starve, she prefers capture to flight. We do not go about wilfully inoculating our fellow-citizens with germs of tuberculosis, but by buying clothing made in sweatshops we encourage conditions which lead inevitably to tuberculosis. We do not deliberately fill our tenement houses with microbes, but we allow tenement houses to stand when they are so impregnated with disease germs that in one block

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187

alone in New York city, known as “Lung Block,” there has been a fresh victim of consumption every twelve days during the past nine years. Many of us do these things quite innocently, and we look about us helplessly, wondering what we ought to do to put a stop to these evils. These I may call our sins of omission, because we do nothing to remedy matters. But there are sins of commission, of which the women who spend are guilty, and these can scarcely be condoned on the plea of ignorance. When women order their costumes or Easter hats at the last moment they must realize that such rush orders can be completed only by exacting overtime work at night or on Sundays of the women who work. When we leave our Christmas shopping until the very last moment we are surely aware of the extra strain we are deliberately putting on those who are overburdened and exhausted at that season of the year. When we deal at stores where notoriously the saleswomen receive low wages, work long hours, get no vacations with pay, and no half-holiday in summer, we must be conscious of the fact that we are encouraging those firms which have a low standard of competition to the detriment of other firms which ought to be patronized in order to encourage a higher standard. When we neglect to pay our bills promptly, especially when dealing with small tradesmen, we ought to realize that, perhaps through our neglect, wages of employees cannot be paid and other debts cannot be met. Many philanthropic women who have larger incomes than they care to spend on themselves will give away large sums of money in order to provide funds for working girls who have broken down physically, mentally or morally, yet had these women, in providing for their own wants, taken the precaution to spend their money in such a way as to create favorable conditions for working girls, the workers in all probability would not have broken down and would not have required any aid. We should not be too proud of our charitable institutions. Preventive philanthropy is far better than palliative charity. Instead of building so many hospitals for the maimed and diseased, let us create industrial conditions which will not maim and cripple working people by the wholesale, and make them diseased at an early age. Let us give them homes where the sunshine can penetrate and

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parks where the children can play, and there will be fewer hospitals required. Instead of establishing so many homes for the aged and infirm, let us pay a fair wage for work and charge less for rent and commodities, so that working people need not expend 80 per cent, of their wages for absolute necessities, which, according to statistics, the average working man does to-day. Instead of organizing working girls’ vacation societies, let us give working girls vacations with pay. If there were no cruelty enacted towards animals and children there would be no necessity for the formation of societies to prevent cruelty. If there were no injustice dealt to the poor and helpless, there would be no work for the Legal Aid Society. We should hang our heads in very shame because of our need for so many charitable institutions, we should not feel that they are a commendable source of pride. We are constantly clamoring for very cheap lodging houses for working girls who receive pitifully low wages, but why should we encourage employers to pay pitifully low wages, and why do we countenance the rapid advance to great wealth of men who make profits in this way? The women who spend, by encouraging employers who pay fair wages and give their employees just and fair treatment are helping to better industrial conditions. By contributing towards the cramped lives of the women who work, a measure of richness and fulness, of beauty, joy and dignity, the women who spend thereby help to abolish much of the distress and misery for the lessening of which our charitable institutions are organized. Hobson, the well-known English economist, who lectured in this country during the past season, has well said that “every purchaser by each act of purchase exerts a direct power of life or death over a class of producers.” This is readily understood when we consider that in every industry conditions are either those which make for life— wholesome, uplifting, constructive— or those which make for death— unsanitary, degrading, destructive. If then the women who spend will but take Ruskin’s advice to heart, and “in all their buying consider first what condition of existence they cause in the producers of what they buy,” there would be more of the perfume of fragrant roses, and fewer briars in the walled-in gardens where toil the women who work.

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our s an d

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ag es

:

The Gendering of Labor Standards in America Sybil Lipschultz

y generation, in its quest for feminist change, has faced many of the same struggles and obstacles in the American legal process as our historical predecessors. We have both become enamored of law as an agent of change, and in the process we have been shaped by the law's existing categories. The limiting effect of legal discourse, which demands social problems be put into legal language plagues feminists today. And there is a tendency to reject as "antifeminist" proposals that attempt to include equality-in-difference because they might fail in court.1 While feminists of different stripes disagree, all feminists must face a changing Supreme Court and an increasingly antifeminist conservatism. On the one hand, the lesson of gendered labor laws seems clear: difference can mean inequality at law. On the other hand, these claims on the law have been a feminist attempt to change society. In America, the history of labor standards is as closely linked to gender as it is to dass.2And the gendering of these standards is rooted in legal ideology and the development of Constitutional law as well as in the political context of that development. Although many contexts are important, my purpose here is to anchor the gendering of labor standards in law to the gendering of the reform community that sponsored and defended these laws. The Progressive Era's politically active women approached the state differently than men, mostly because they were situated to state power differently. As nonvoting citizens and as political activists who had come together to fight for their rights, women approached the state with a heightened sense of possibility. To them the state was the agency that should make past wrongs right; it was the locus of democracy and equality.3 Influenced as well by female reform activity, women political activists extended and greatly expanded their own feminist politics to the broader society. Employing themselves as "social feminists," they sponsored policies that created a kind of social democracy for poor mothers, impoverished working women, victims of industrial accidents, and exploited homeworkers.4 In so doing they re-visioned the notion of "rights." In a sense they were social democrats and feminists of a certain type. As feminists, they were interested in achieving substantive equality, or different legal treatment in order to gain equal results.5

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Previous historians have suggested these social feminists looked away from rights and emphasized needs. I would like to suggest that they redefined satisfaction of social and economic needs as rights, and attempted to get that definition written into American law. Nowhere is this more evident than in efforts to obtain maximum hours and minimum wage regulations for women, and eventually for all workers.6The efforts to attain both reforms were linked by the same group of social feminists who assumed that one would lead to the other, indeed, that the two would supplement one another. In my argument, hours and wages are also inextricably linked. Men involved in reform movements to humanize the workplace were primarily interested in stopping socialism and revolution. Expanded state activity in the workplace, they hoped, would limit the abuses of the factory system (particularly "sweating") enough to quell worker dissent and legitimate the industrial economy of the early twentieth century.7 Motivated by humanitarian concerns as well, these members of the "Wisconsin School" of industrial reform and active members of national reform organizations, did not focus on gender concerns.8 These men, especially social scientists John Commons, Richard Ely, and John Andrews, sought new avenues of social change. Concerned with blending new social science methods and findings with government action, these men focused on reform for workers. Their definition of work revolved around men's jobs; their image of the "worker" was a robust man involved in a labor union, who had a family to support. For them interest grew in the new "sociological jurisprudence," so named by Harvard law professor Roscoe Pound. His colleague, Louis Brandeis, and later, Felix Frankfurter, together forged new avenues for social change through legislation and litigation informed by "social reality," rather than fixed legal principle. In order to change legal principles, someone had to describe social reality; here was a place for social scientific reformers.9 These reformers wanted to obtain political acceptance of state regulation of the economy. To stimulate this rather massive change, they knew they needed to find a place to start, an open door. The legal door opener, curiously, was the legal category "woman." The Supreme Court had hinted at this in the 1905 Lochner v. New York decision where they denied the rights of male workers to limit the working day by law.10In Lochner the Supreme Court articulated the "unconstitutionality" of limits on the hours of labor for men based on freedom of contract. This doctrine restrained the state from using its police powers to interfere with "freely entered into" employment contracts. In denying state police powers, which would have made labor regulation a matter of welfare, morals, and health of the community, the Court declared that "robust" male workers "did not need

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their health protected." The bakery owners went even further when they suggested that it was unmanly, even childish, to turn to the state for economic protection. Women, on the other hand, were not seen as "robust." The assumption of women's relative weakness became the opening door for women's labor laws.11 Lochner v. New York set a precedent where "freedom of contract" would prevail in cases involving men's working hours. New York bakers attempted to show that the state's labor law, limiting their work to ten hours per day, was a health regulation. The Supreme Court decided in 1905 that unlimited hours did not threaten the health of the bakers (even though evidence of ill health was presented), but did consider whether they posed a risk to the general public. Five of nine justices argued that the public was unaffected by the quality of bread produced by tired workers, and struck down the law. This interpretation of the police powers of the state would change as the century progressed.12 Women, as Supreme Court justice David J. Brewer later said, were in "a legal category all their own."13 This separate status became the excuse to uphold labor legislation for women only, because women could not be subject to the same legal rules as men. Particularly important in keeping women in a separate legal category was an attempt to deny contract rights. Contract rights were significant to labor law; the ideology of "free contract" stood for many generations as a barrier to state regulation of working conditions.14 Since judges tended to portray women as having fewer contract rights than men, no freedom of contract nor political rights, some jurists concluded women were not legally capable of negotiating their own labor contracts. Taking this cue from the courts, members of the social science community decided to rely on the legal category "woman" to obtain labor laws for all workers. "Women" then became the subject (or perhaps the object) of labor law reform. And in the world of reform, women who were assigned the task of addressing women's labor laws because "women's" jobs in the reform community were as sex-segregated as in the general labor force. Men at the important and male-dominated American Association for Labor Legislation turned their attention to industrial accidents and worker compensation— reforms directed at working men. But the female-dominated National Consumers' League (NCL) sought protective labor legislation exclusively for working women. Thus, in the process of pursuing a policy that would have gendered consequences, reformers themselves became more gender specialized in sponsoring legislation, and their relationships with each other became more gendered as well.15

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The National Consumers' League had not always been litigious. In its earlier days members saw themselves as a pressure group, encouraging female middle-class shoppers to boycott goods produced under exploitative conditions. They developed a "white list" of companies that practiced labor standards, and they issued a Consumers' League label, which companies sewed into manufactured goods to alert shoppers to the League's approval.16 But educational and pressure politics proved fairly limited; NCL members looked for a source of change that would be more reliable and permanent. As social scientists moved in the direction of change through the law, and with state efforts to pass protective legislation for women, the NCL also turned to law as an agent of social and economic change.17 Florence Kelley, NCL Executive Secretary, became a labor law activist whose purpose was to introduce judges to the idea of a state-regulated workplace through the use of labor laws exclusively for women. As judges grew accustomed to new ideas and became comfortable with the arguments, the NCL planned to introduce labor laws for men, hoping that judicial thinking would extend from one gender to the other. The fight for a shortened workday for women, which resulted in the landmark Supreme Court case, Muller v. Oregon, would not have been possible without the efforts of the National Consumers' League. Kelley's experience with factory inspection in Illinois, convinced her of the need for legislation to curb the worst abuses of industrialism.18 Her goal fit well with the broader reform community, and statutes to limit the workday were proposed and won in several states.19But as the Supreme Court had hinted in Lochner v. New York, hour legislation stood the best chance of surviving legal challenge if it exclusively addressed women and not men. A few years earlier the Nebraska Supreme Court found a ten- hour law for women acceptable because "women and children have always to a certain extent been wards of the state."20 In the long years that Progressives struggled to secure labor laws, there developed an important distinction between women and men on several levels. The separation of women and men in labor law itself reinforced different treatment of working-class women and men. Such separation contributed also to confusion within the legal system about women's status at law. As Justice Brewer's 1908 depiction of women in their own legal category finally gave way to suffrage rights for women, it ceased to be entirely dear what rights belonged to women as dtizens, much like men, and what rights belonged to them as women, separate from men. There developed in law an important tension between "sameness" and "difference," and a significant problem arose regarding women's equality. Were women to have legal equality based on their

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citizenship and personhood, or was equality to be derived through attention to difference? Such legal questions, bedeviled feminist unity in early twentieth- century America. The politics of female and male reformers exhibited important political distinctions. Women and men actively engaged in passing labor legislation and testing it in court divided over the initial strategic decision to consider women's labor laws as exclusive and separate from men's labor laws. As the Progressive movement increasingly focused on women's laws to get judges accustomed to the idea of labor law, male Progressives started to define the work of women's labor reform as women's work within the political movement. John Andrews, based at the American Association for Labor Legislation, dropped women's labor laws from his agenda, as he turned to more general questions of social insurance, such as "workman's" compensation. His spouse, Irene Osgood Andrews, on the other hand, was assigned the work of women's labor laws, which made her the only person at the American Association for Labor Legislation actively engaged in women's issues.21 At the more female-dominated National Consumers' League, Florence Kelley led the fight for women's labor reform and male "leaders" lent their names to the letterhead, where they were listed as President or Vice-President, but did little work for women's labor laws. Allies from the women's organizations— the National Women's Trade Union League, the National American Woman Suffrage Association, and later, the League of Women Voters, General Federation of Women's Qubs, and the Consumers' League— worked together to win labor laws for women.22 This turn of events proved fortuitous for social feminists. Assigned the task of labor regulation especially for women, they turned this into an important opportunity; women in the labor law movement were able to find a vital political voice advocating labor laws for women. Thus the most prominent protective legislation for women gave those who advocated it national recognition in the political sphere. For women seeking to influence public policy and to involve themselves as women in matters of state, this was not a negligible gain. While the Consumers' League spearheaded protective legislation, along the way they picked up support from a variety of women in other organizations. The challenge to women's hour laws came from Oregon. Muller v. Oregon, finally heard before the Supreme Court in 1908, turned the Consumers' League into a legalistic reform organization. Social feminists brought Muller through the courts to test the Oregon statute that limited a woman's work day to ten hours (often called "the ten-hour law"). The case involved workers employed in a laundry; the court reasoned that long hours standing on one's feet might damage a woman's health. This picture

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of the "weak" woman appeared in stark contrast to the "robust" baker of Lochner, on his feet for many hours. For that reason, the court restricted freedom of contract between employer and employee, creating economic regulation. In upholding ten-hour laws for women, the Supreme Court fell back on the police power of states to protect the health and welfare of the community. In this instance, "the community" consisted not only of working women but also their children and their potential unborn children.23 Thus, the Court's concern with the "future race" women would produce and the possible ill effect of long working hours on fertility and reproductive health affected its decision. Domestic roles did not elude the justices either: women won a shorter workday because they were needed at home to care for family members. For these reasonis the Supreme Court argued in Muller that the state could intervene to regulate their labor.24 The NCL brief, which is well regarded even today among legal scholars, is presented to law students as the brilliant strategy of young attorney Louis Brandeis. The then unique method of stressing "extra-legal" material in a brief to set the social, economic, and scientific context for a legal case is attributed to Brandeis in its technical name, "the Brandeis brief." This style of litigation— sociological jurisprudence— was certainly Brandeis's favored approach, but he did not research or write the briefs that made him famous and "revolutionized" legal method. Although this remarkable accomplishment bears his name, Josephine Goldmark, research assistant at the Consumers' League, wrote it. NCL women understood that they needed men more powerful than themselves like Brandeis to legitimate their cause and bring suit in court. But there were costs of working with these men, and one of them was that women did not receive the credit due them. NCL women carefully noted their own historical importance in their minutes, recording that Goldmark had done the work. They also suggested popularizing the brief under a new title with joint authorship. Brandeis may have had his day in court, but NCL women wanted Goldmark to be known to a wider audience. Despite the popularity of the brief at the time, this style of litigation is still attributed to Brandeis.25 During the period following Muller and before women won suffrage in 1920, dominant judicial thinking held that women did not have the same contract rights as men. Moreover, married women had suffered a long history of legal restriction in the public sphere, especially in occupational choice.26 These factors made it possible for judges to curtail the hours a woman worked, relying on the logic that women were not capable of negotiating their own labor contracts.

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The women who worked hard to win the 1908 decision in Muller had participated in the early factory inspections, where they demanded that factory conditions be exposed, taking it upon themselves to get the information. Simultaneously many of these women, most notably Jane Addams and Florence Kelley, became active in the settlement movement, and Hull House and Henry Street became important locations for political organization. Not interested in marriage, but not wanting to live alone, such women could find something of a halfway house in the settlement movement, a social space that became a bridge between the nineteenthcentury woman and the twentieth. As a socially acceptable place for women to live together, they gathered their political energy in settlement houses and advocated what they called "social housekeeping."27 Social housekeeping, like the settlement movement that fostered it, provided female reformers a way to the rhetoric of domesticity in developing a political voice. The settlement movement and the factory inspection experiences of Kelley and Addams influenced their view of women's labor legislation. Their rationale for hours legislation had a great deal to do with working women's health and safety at work and a desire to make employers who practiced "sweating" accountable.28 Rhetoric about women as necessary caretakers and homemakers echoed social housekeeping: a means to get attention to women's voices and account legally for women's situation. Social feminists accepted female dependency during the Muller years. It seemed appropriate that women needed their "brothers," as the Muller opinion declared, and many of their policies reflected this refusal to challenge dependence 29In addition, they employed some rather dangerous language. Although arguments about maternal health— even regarding potential motherhood— were successful in legislatures and courts, the phrase "preservation of the race" easily lent itself to fears of race suicide, having obvious racist overtones. The Supreme Court declared the public interest in women's health was "to preserve the strength and vigor of the race."30 This rhetoric may have had a hand in keeping black and white women's reform groups segregated, seriously limiting the reform potential and the feminist solidarity within the Progressive movement.31 Women who advocated women's labor laws, and female dependency along with them, also fought for suffrage and women's equality. They apparently saw no contradiction between individual states responding to the needs of exploited and exhausted female workers facing domestic duties at the end of each day, based on the notion that women and men should be treated differently under the law and their demand that the national government recognize women as full citizens with the right to vote and the other political rights enjoyed by men, premised on a belief

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that women and men were fundamentally alike. Women could be both the same and different from men, according to pre World War I feminists, in the quest for both justice and equality. This gave advocacy of protective legislation special significance for women, who understood women's labor laws as part of a general feminist effort to alter industrial working conditions for women. In the name of motherhood and the family, social feminists sought to protect women so they could be better mothers, wives, and caretakers, but also to create a more humane work place for women as workers. Their male counterparts in the labor law movement did not share the feminist experience of fighting for suffrage, nor did they suffer the denial of their political rights as men. As a result they could never relate to women's labor laws as part of that set of conditions. For them, Muller expanded the role of the state as intervener between employer and employee. In that sense they used women workers as a legal category, because they needed them as a wedge to enter a legal system otherwise hostile to economic intervention. They also used social feminists, who helped construct the ideas needed to make the case for working women. Moreover, when they characterized women as dependent individuals and caretakers, it was out of paternalism and not feminism. Divergent meanings emerged among male reformers, judges, and social feminists, who spoke the same words but did not quite agree on their interpretation. As this disagreement developed between women and men in Progressive Era reform, the Supreme Court encouraged a similar bifurcation between the treatment of women and men in labor law— the gendering of labor standards. Relying on women's differences from men, social feminists stressed women's social responsibilities that set them apart from men, but also portrayed women as physiologically weaker than men, especially because of childbearing. The Supreme Court in Muller resorted to this biological difference because it fit well within the existing legal category of gender. The result compounded women's social inequality at law and reinforced gender stereotypes. At worst, this policy served only to restrict women's work by denying them better jobs or limiting their pay through reduced hours. When hours were reduced, hourly pay was not increased. Many women worked at piecework, paid by the product rather than the time on the job; fewer hours meant fewer pieces and lower pay.32The Muller Court characterized women as domestic creatures, who worked perhaps out of necessity but could not be considered "real" workers. Instead, in the opinion the Court said that "woman's physical structure and ... maternal functions place her at a disadvantage . . . especially . . . when the burdens of motherhood are upon her."33 Social feminists initially accepted this

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notion, but tensions developed between their conceptualizations of woman-as-eamer and woman-as-caretaker. A 1913 Oregon statute set a ten-hour day for men and in 1917 the Supreme Court finally heard arguments in Bunting v. Oregon. Again the Consumers' League's team of Brandeis and Goldmark prepared the brief. During proceedings, however, Brandeis joined the Supreme Court, and Felix Frankfurter took over for him at the Consumers' League.34This time, however, the Consumers' League brief argued for hour regulation on new grounds. It said that a man needed more nonworking hours "in order to become a useful citizen . . . the laboring man must have time for leisure and citizenship." In general the League asserted in Bunting: "The welfare and safety of democracy rests upon the character and intelligence of its citizens. For the exercise of the elective franchise is determined by the mental and moral equipment of the voters . . . leisure is a prime requisite for good citizenship."35In Court, Frankfurter stressed that the question of whether or not the State could regulate working hours had been setded— it was within the police power. He relied on Holden v. Harding, the 1898 case that upheld hour regulation for male mine workers on the grounds that theirs was a dangerous trade. Even though this was a very specific circumstance for regulating men's working hours, Frankfurter argued that Holden was good precedent for generalized hour regulation for men. "It is now demonstrable that the considerations that were patent to miners in 1898 are to-day operative, to a greater or less degree, throughout the industrial system." New information was now available for the Court to consider, material which had been unavailable when the Court heard the Lochner case. This data "obtained by the increasing study of industrial conditions," guided the Oregon legislature in passing a ten hour law for men, and supported the State's courts when they upheld the statute. Frankfurter reasoned that the State exercised "reasonable judgment as to the public welfare in passing its ten-hour law," because it relied on "new facts," or the most current industrial studies to determine that a ten hour day for men was valid. Frankfurter urged the Court to accept this standard of judicial notice, or substantive due process.36 Bunting, an employer who believed he was unfairly effected by the ten-hour law, argued through his lawyer W. Lair Thompson, that the statute was a wage regulation in disguise, because there was a provision for paying male workers time-and-a-half for overtime work. Because the overtime clause allowed three additional hours of work, Thompson charged: "The law is not a ten-hour law; it is a thirteen-hour law," designed to compel employers to pay workers more money. "It is based upon economic grounds exclusively," said Thompson, and this "robs the law of any argument that might be made to bring it within those grounds

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that justify an exercise of the police power."37 Thompson also observed that wage regulations were unconstitutional and "commingling unlawful methods . .. with a lawful purpose," such as an hour regulation, should render the entire statute unconstitutional. Of course, he was admitting that the ten-hour provision was lawful, just as he seemed to suggest that the law was outside of the State's police powers only because of the overtime pay clause, not the ten-hour regulation. Yet, elsewhere in his argument, Thompson contradicted himself, saying that the ten-hour law itself should be voided as an hour regulation. Perhaps anticipating the defense, he argued that even if the Oregon law were see as an hour regulation, it did not relate to the health of employees and therefore was outside the police powers of the state. Unlike Holden, the Oregon law was broad, covering work in mills, factories and manufacturing, rather than remaining specific to one perceived danger, such as mine work. "The occupations affected are the ordinary employments of life, and involve only the ordinary dangers to health that accompany manual labor," argued Thompson, in an attempt to show there was no special threat to health and welfare, leaving the law outside the State's police powers.38 Counsel for Bunting argued both that Oregon's statute was an invalid attempt to regulate wages and a specious effort to standardize working hours. The Supreme Court disagreed with Bunting, saying the law regulated hours and agreed with the State of Oregon that the statute was reasonable, falling squarely within its police powers as a health regulation. And the Court dismissed the time-and-a-half clause as an enforcement measure, designed to deter employers from keeping workers longer than ten hours, exacting a monetary penalty through overtime pay on the employer who exceeded the ten hour limit39The Court also speculated that the clause created flexibility in the working of the law, something perhaps undesirable but legitimate.40 Even though Bunting's lawyer had insisted that if the Court saw the law as an hour regulation it was invalid because it was not a health measure, the Court responded, "The record contains no facts to support the contention. . . further discussion we deem unnecessary." 41 The only precedent for men's hours law was Holden v. Harding, the 1898 case that was restricted to men in the mining industry. Frankfurter, in his argument for the State of Oregon and the Supreme Court in its opinion in Bunting, relied on H olden . The circumstances in Holden, however, were very different, creating labor standards for men in dangerous jobs. The jobs at stake in B unting comprised most types of industrial labor. For the Court to move from Holden to B unting would have required a leap of faith. The case much closer to B unting was the men's hour case, Lochner v. New

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York, in which the Court found no legal foundation for labor standards for male bakers. Lochner was present in Frankfurter's arguments, but in the Court's Bunting opinion, the justices silently ignored Lochner.42 The difference in outcome between the two cases could well have been what Frankfurter argued— additional information, previously unavailable, to sway the Court in the new men's hours case. The Consumers' League brief contained 984 pages of new evidence on industrial life for the Court to take "judicial notice." With the same legal approach— social science data to set the context and establish a need to protect the health and safety of the community— two different legal opinions emerged in decisions attempting to rationalize shorter hours. The Court observed in Muller that women and men seemed "on the same plane," except for "the elective franchise."43 In Bunting the difference between women and men turned on political rights; voting male citizens with full contract rights should have been able to win state intervention in their working conditions so they could be free to participate more fully in their community politics, reasoned the Consumers' League in their brief. Comparing the briefs in Muller and Bunting it seems the NCL made much of the fact that women had fewer political rights than men. That was one reason why the Court could justify intervening in the terms of labor for women. When it came to establishing shorter hours for men, the Consumers' League needed to explain why these voting citizens needed the Court's involvement in their labor contracts. Men, the NCL argued, needed a shorter work day because of their citizenship status. They needed free time away from their jobs to be politically active, a form of community welfare, asserted the NCL. Women, who did not yet have suffrage rights, received regulated hours of labor in Muller to create more time to serve the community interests by caring for their families.44 Ironically, the same women who fought for women's suffrage made arguments about women's lives that appeared to lend feminist credence to legal characterizations that drew on women-as-caretakers and men-asactivists. When social feminists attempted to make gains for women in the name of the family, they did not have in mind confining women to a legal category that would mandate inferior treatment. They sought, instead, full recognition for the work women did at home; they believed this would lead to more equitable treatment generally for women in society.45 Suffrage politics, based clearly on an ideology of formal equality, were fueled in part by women's labor laws. Social feminists believed that suffrage would make it easier to establish labor laws for women. The courts upheld these laws for women based on a combination of arguments about women's rights.46 But social feminists chose to emphasize one

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aspect of the Bunting decision— that affecting citizenship and voting rights. Their interpretation of Bunting convinced them all the more that suffrage and women's labor laws together would create the best possible outcome. As reformers they reasonably believed voting rights along with labor laws would be good for women. After the suffrage amendment passed in 1920, social feminists logically thought they could win more labor regulations for all working people as citizens, including women, who were no longer viewed as wards of the state. The litigation strategy of social feminists initially stressed women's biological difference as something permanent. But they also embraced female equality as suffragists. By 1920 they spoke in the language of rights when advancing women's labor laws, dropping the old-fashioned rhetoric of "protection." In this new era, social feminists spoke of "women's labor laws," or "welfare legislation."47 Furthermore, rather than stressing biological differences, women's labor law advocates began to look at socially constructed differences between women and men. And they believed women should win labor regulation so they could be better citizens too, not just better mothers. Promoting healthy motherhood was still important to social feminists, but they combined this older ideal with the concept of women's rights.48 Balancing women's rights in the public sphere with women's socially conditioned roles became a vital part of social feminism in the 1920s. This entailed presenting a new image of the working woman. No longer depicted as weak and needy, social feminists portrayed the working woman after the Great War as independent, working because others needed her. This female worker was a nurturer, to be sure, but her nurture stretched beyond the emotional to the economic sphere; working women had become providers. The NCL defended women's labor laws as the best route to equal treatment for women. Social feminists' entire justification for women's labor laws began to shift from the stance of women's dependency to women's equality. This equality was a type of feminist quest that, like comparable worth or maternity leave today, addressed women's differing life experiences. Rather than allowing differences to disadvantage women, social feminists proposed new policies intended to value differences, without compromising equal rights. But the effort to present new images of women to the courts failed in the post-suffrage minimumwage test cases. The first case arguing minimum wages for women failed with a four to four Supreme Court tie. Justice Louis Brandeis recused himself because his sister Elizabeth was on the District of Columbia minimum wage board. This split decision in Stettler v. O'Hara meant that the lower court's opinion

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would stand. This Oregon Supreme Court decision argued that women did not receive wages sufficient for their support, but it unanimously rejected the statute.49 Nonetheless, some states went ahead and created such laws of their own, because they understood that Brandeis would have voted for the women's minimum wage. In the 1923 Adkins v. Children's Hospital decision the Supreme Court declared minimum wages for women unconstitutional. The justices decided against wage regulation because it interfered with the contract between employer and employee, and, in judicial reasoning, was unlike hours regulation because it did not relate to a woman's health. Using the Lochner freedom of contract doctrine, the justices deemed it inappropriate for the state to intervene in the agreement between employer and employee. Of course, the NCL had argued that low wages meant poor health, because women worked for their own support and the support of others.50 Molly Dewson meticulously prepared the Consumers' League brief. She gathered sociological and economic data for attorney Felix Frankfurter, who worked on the legal arguments and appeared in court51 Dewson's brief represented a shift in the thinking social feminists. Previously they had argued that long working hours harmed women; now they put forward the argument that work itself was far less damaging than low wages. Social feminists suggested women had a right to decent wages: "underpayment of large groups of women" was "contrary to all standards, economic as well as social." The minimum wage was the "first step toward the elevation of women in industry to a plane where due recognition is given the value of their work."52 Furthermore, women did not work to buy "female fripperies," as some had constantly argued. Women worked to support others. Dewson used reports that stressed women as breadwinners, with family members dependent on their support. A Women's Bureau report, The Share o f W age-E arning W omen in Family Support was a breakthrough in understanding why women worked, and Dewson relied on it heavily. The Nation applauded the report as finally having "exploded" the myth that women worked only for "pin money."53 M uller and Adkins were different in several significant fashions. While M uller rested on disenfranchised women and weak, pathetic mothers of the race, the Court implied they did not possess contract rights of men. The justices did not say women had no right to contract, but suggested it was considerably less than men's. The Court took advantage of women's inferior position in voting rights and contracts, and used this to uphold maximum hours in M uller 54 After winning suffrage social feminists had to find new legal arguments, and they borrowed freely from postsuffrage

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rhetoric."As voters, women were for the first time . . . sharing in government," according to the NCL and so it proclaimed a new goal for women: "We must see to it that industrial life is compatible with citizenship in democracy."55 Social feminists wanted minimum wage laws for women so they would earn more money. They linked starvation, low wages and public health— the requirement of the police power. But this link was not genderspecific. By stressing poverty, social feminists could invoke the police power, while simultaneously raising the specter of minimum-wage laws for men.56 This was more than some were willing to risk. The National Consumers' League took the reality of the wage differential between women and men, and used it to argue that women needed higher wages to enjoy the rights of citizenship and equality, insisting that since suffrage was won women had a right to a minimum wage. After all, men had won shorter hours because they needed time to participate in politics. It was only logical for NCL members to conclude that the Court would agree that voting women could have their wages regulated as part of their political rights. They applied the reasoning in Bunting, the male maximum hour case to their arguments for the women's minimum-wages case in Adkins. But the Supreme Court responded by saying that state police power was not intended to promote equality but to promote public welfare. It was possible to have welfare without equality. In this case the justices used the police power rule to deny the legality of more egalitarian wages, and to discard arguments about women's equality.57 The Supreme Court's decision in Adkins v. Children's Hospital made a farce of women's equality. Women were denied minimum wages because suffrage, according to Justice George Sutherland, reduced female inequality to a "vanishing point!" This made women free, he argued, to negotiate their own wages. He made no effort to overrule Muller by this same logic. In his view women were free to work for any wage offered, but too dependent to choose their hours of labor.58On the dissenting side, Oliver Wendell Holmes equated wage laws with hour laws. He assumed that if one could be regulated then so could the other. But even he used stereotypically gendered language to comment on women's equality: "It will take more than the Nineteenth Amendment to convince me there are no differences between women and men, or that legislation cannot take those differences into account." Though a liberal and a supporter of women's labor laws, Holmes assumed that inequality backed Muller, and the remaining inequality after suffrage should uphold Adkins.59 While social feminists increasingly used equality and rights arguments in court cases, their male supporters still believed inequality, dependence, and weakness provided the best basis for women's labor laws. In

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Adkins v. Children's Hospital, sodal feminists brought some ideas from Bunting to their brief by asking the Court to take notice of women's

political rights and domestic responsibilities. They tried to get the women's minimum wage approved because women were voting citizens. The conservative Adkins Court, however, turned suffrage and women's equality arguments against minimum wages for women. It dedared that gender-neutral law meant no regulation of wages for any workers. If men could not have their wages regulated, then neither could women.60 This equality-with-a-vengeance, revealed a deep strain within American Constitutional law. The daim for equal rights meant equal to men, and equality meant being treated the same as men. Those who advocated "substantive equality," or different treatment for similar or just results, discovered another current at the depths of American law, which suggested (as in Muller) that difference amounted to inequality. Social feminists first became interested in women's labor laws to protect working women. They went on to defend these laws based on substantive equality and women's differences from men. Although their proposals for economic equality were modest, they were courageous enough to confront mainstream economic thinking, and they did so over gender issues.61 The judges, lawyers, and activists involved in Adkins all grappled with women's equality and women's differences from men. Some, like Sutherland, used equality to rationalize opposition to all labor laws. Others, like Holmes, invoked women's inequality to defend a minimum wage for them. A contradiction had developed between equality and labor reform for women. Sodal feminist leaders accomplished a great deal. They attained some power in the government by advocating woman-centered policy, and they created the regulatory arm of the welfare state. But the labor laws they helped create resulted in an unintended negative consequence, the restriction of working women's opportunities. This happened because the state they built was less a woman-centered one than it was a gendered state. Sodal feminists advocated these laws as something that would be good for women. They saw the Equal Rights Amendment of the 1920s and 1930s as a threat to women's labor laws because they believed the ERA, based on formal equality, would wipe out years of litigative and legislative work for labor standards, based on substantive equality. Their lawyers helped to convince them this was true.62 Sodal feminist polides treated women and men differently, and this mirrored their own gendered experience as reformers. The idea of gender difference in labor law resulted in part from the dedsion to focus on labor standards exclusively for women. But it was also effected by the different

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relationship of women to the Constitution— a relationship defined by exdusion and by struggle to gain admittance. Part of the struggle to have government respond positively and justly to women's interests can be seen in the fight social feminists waged for women's labor laws. N o t es This Paper was originally presented at the Social Sdence History Association Meeting, 1990. Another version of it was presented at the North Ajnerican Labor History Meeting, 1991. The author wishes to thank Eileen Boris, Ava Baron, Alex Lichtenstein and Chris Thomlins for their helpful comments and encouragement. The author also thanks Joan Hoff and the staff of the Journal of Women's History for their exceptional editing job. 1 This appears to have been one effect of EEOC v. Sears. On the Sears case, see Ruth Milkman, "Women's History and the Sears Case," Feminist Studies 12 (Summer 1986): 375-400; Alice Kessler-Harris, "Equal Employment Opportunity Commission v. Sears, Roebuck and Company: A Personal Account/' Radical History Review 35 (1986): 57-79. 2 Many historians have written about women and labor law, most notably Alice Kessler-Harris in much of her work, bu t especially A Woman's Wage: Historical Meanings and Social Consequences (Lexington: The U n iv e r s i ty of Kentucky Press, 1990); Eileen Boris, Howe to Work: Motherhood and the Politics of Industrial Homework in the United States (Cambridge and New York: Cambridge University Press, 1994); Judith Baer, The Chains of Protection: The Judicial Response to Women's Labor Legislation (Westport, Conn.: Greenwood Press, 1978); Candice Dalrymple, "Sexual Distinctions in the Law: Maximum Hour Decisions of the Supreme Court" (Ph.D. Diss. University of Florida); and Susan Lehres The Origins of Protective Labor Legislation for Women (Albany: The State University of New York, 1987).

On comparable worth, see Sara Evans and Barbara J. Nelson, Wage Justice: Comparable Worth and the Paradox of Technocratic Reform (Chicago: University of Chicago Press, 1989). On maternity leave, see Wendy Williams, "Equality's Riddle: Pregnancy and the Equal Treatment/Spedal Treatment Debate," 13 New York University Review of Law and Social Change 325 (1984-85); and especially Lise Vogel, "Debating Difference: Feminism, Pregnancy and the Work Place," Feminist Studies 16 (Spring 1990): 9-32, and Mothers on the Job: Maternity Policy in the U.S. Work Place (New Brunswick, N.J.: Rutgers University Press, 1993). ? On the significance of suffrage to the political style and impact of twentieth-century women activists, see Estelle Friedman, "Separatism as Strategy: Female Institution Building and Ajnerican Feminism, 1870-1920," Feminist Studies 5 (Fall 1979): 512-529; Paula Baker, "The Domestidzation of Politics: Women and American Political Sodety, 1870-1920," American Historical Review 89 (June 1984): 620-647; Michad McGerr, "Political Style and Women's Power, 1830-1930," Journal of American History 77 (December 1990): 864-885. *J I am deliberately not using the term "maternnlism " Reformers invoked the rhetoric and imagery of matemalism to adiieve state policy tha t was woman- and child-centered mostly in the area of mothers' pensions

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and infant mortality. And writers who focus on matemalism tend also to focus on these issues. I have found a departure from this in the group that worked on labor standards. In labor standards, I argue that the term "social feminist" be retained, because it highlights the feminism of the group, which was a feminism of difference, and because the social sphere encompasses the impact of their work. See Sybil Lipschultz, "The Feminist Social Question," (paper Presented at the Organization of American Historians, Chicago, April 1991, in author's possession). Seth Koven and Sonya Michel, "Womanly Duties: Matemalist Politics and the Origins of the Welfare State in France, Germany, Great Britain, and the United States, 1880-1920, American Historical Review 95 (October 1990): 1076-1108, explores the idea of matemalism in women's activism across four countries, and they favor the usage of "matemalism." I agree with this usage for woman and child-centered welfare; I simply see it differently in the labor law context. For a survey of work on maternal and infant care, see Koven and Michel, "Womanly Duties;" on women's labor law, see Sybil Lipschultz "Social Feminism and Legal Discourse, 1908-1923," 2 Yale Journal of Law and Feminism 131 (1989); on homework regulation, see Eileen Boris, "Regulating Industrial Homework: The Triumph of 'Sacred Motherhood' Journal of American History 71 (March 1985): 745-763, and Eileen Boris, Home to Work: Motherhood and the Politics of Industrial Homework in the United States (New York and Cambridge, Cambridge University Press, 1994). 5 The emphasis is on needs, and rightly so, in Koven and Michel's survey, "Womanly Duties," and in Linda Gordon's introduction to Women, Welfare and the State (Madison: University of Wisconsin Press, 1990), 3-35. The welfare state was premised on a response to need, and the women who helped build the foundation for the welfare state emphasized needs. But one important difference between the welfare state and the regulatory state may be that in regulatory activities, social feminists redefined needs as rights, which says something very important about their politics: it was not just oriented toward care, but it was embedded in a rights discourse. For further discussion of these issues, see Sybil Lipschultz, "The Social Feminist Question," (Paper Delivered at the Organization of American Historians Meeting, Chicago, April 1992, in author's possession). Social democracy themes are treated by Wendy Sarvasy, "Beyond the Difference and Equality Debate: Post-Suffrage Feminism, Citizenship and the Quest for a Feminist Welfare State," SIGNS: Journal of Women in Culture and Society 17 (Winter 1992): 329-362. 6 U.S. Department of Labor, Women's Bureau, Proceedings of the Women's Industrial Conference, Bulletin no. 33 (Washington D.C.: Government Printing

Office, 1923); National Consumers' League, "The Case for Special Legislation for Women Workers," in U.S. Department of Labor, Women's Bureau Collection, Record Group 86 , National Archives, (undated, probably early 1920s) Washington, D.C. I am contrasting the ideas and politics of social feminists in the twenties with their attitudes and beliefs during the early 1900s. For example, compare these 1920s ideas to Josephine Goldmark, Fatigue and Efficiency: A Study in Industry (New York: Russell Sage Foundation, 1912). 7 On the relationship of early social scientists to political goals, see Mary O. Fumer, Advocacy and Objectivity (Lexington: University of Kentucky Press, 1975); and Dorothy Ross, "Socialism and American Liberalism, in Perspectives in American History, ed. Donald Fleming, vol 11. (Charles Warren Center for Studies in Ameri-

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can History, 1977-78), 7-79. A good discussion of how the professional experiences of women differed from men in this period is in Robyn Muncy, Creating a Female Dominion in American Reform (New York and Oxford: Oxford University Press, 1990). Biographical material on several women social scientists is in Ellen Fitzpatrick, Endless Crusade: Women Social Scientists and Progressive Reform (New York and Oxford: Oxford University Press, 1989). 8 We now have an excellent comparison between the male American Association for Labor Legislation and the National Consumers' League. See Kathryn Kish Sklar, "Two Political Cultures in the Progressive Era: The National Consumers' League and the American Association for Labor Legislation," in U.S. History as Women's History: New Feminist Essen/, eds. Linda K. Kerber, Alice KesslerHarris and Kathryn Kish Sklar (Chapel Hill: University of North Carolina Press, 1995), 36-63. 9 Roscoe Pound, "The Scope and Purpose of Sociological Jurisprudence," Parts 1-3, 24-25 Harvard Law Review at 591, 140, 489 (June, December 1911, April 1912) is the best source on the meaning and expectations of sociological jurisprudence. Also useful is Louis D. Brandeis, "The Living Law," 10 Illinois Law Review 461 (1916). On the social scientists see their own writings, such as John R. Commons, Myself. The Autobiography ofJohn Commons (Madison: University of Wisconsin Press, 1963); Richard T. Ely, Ground Under Our Feet An Autobiography (New York: Macmillan, 1938). There is a very good collection of Commons's original writings at the Wisconsin State Historical Society. 10 Lochner v. New York,

198 U.S. 45 (1905).

11 Lochner v. New York, 198 U.S. 45 (1905), Transcript of Records and Briefs, Brief for the Plaintiff in Error, 8-18. 12 Candice Dalrymple, "Sexual Distinctions in the Law: Early Maximum Hour Decisions of the United States Supreme Court, 1905-1917."

Substantive due process, also known as judicial notice, is judges taking notice of the world around them and interpreting laws consistently with what they see. This method increased the possibility of interpreting laws in terms of judicial bias. Unquestioned assumptions about gender and race easily found their way into substantive due process. When social feminists stressed equality in difference in the courts, they gave judges rhetoric that was easily misinterpreted to be consistent with the unconscious notions about gender difference—that it was grounds for inequality or unequal treatment. See Barbara Babcock, et al., Sex Discrimination and the Law: Causes and Remedies (Boston: Little Brown and Company, 1975), 19-23; and Joan Hoff, Law, Gender and Injustice: A Legal History of U.S. Women (New York: New York University Press, 1991) 187,195,198. In Lochner, the Supreme Court Justices used substantive due process to surmise that the health, safety, and welfare of the community was not in danger from bakers working long hours. Their fatigue did not affect the quality of the bread, which the public would consume. Judicial observation failed to recognize bakers as a community deserving of protection, because of the upper-class membership of the justices and the resulting class bias. The police power of the state was a regulatory power. Judges used it to justify regulatory legislation if the law was necessary to ensure the health, safety or

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welfare of the community. See Eamst Freund, The Police Power, Public Policy and Constitutional Rights (Chicago: Callaghan and Co., 1904). 13 Muller v. Oregon,

108 U.S. 412, 421-23 (1908). It was Justice Brewer's

opinion. 14 Different dimensions of the history of contract are outlined in William Forbath, "The Ambiguities of Free Labor: Labor and the Law in the Gilded Age," 4 Wisconsin Law Review 767 (1985); and Amy Dru Stanley, "Conjugal Bonds and Wage Labor: Rights of Contract in the Age of Emancipation," Journal of American History 75 (September 1988): 471-500. 15 The work of the AALL is described in Roy Lubove, The Struggle for Social Security (Cambridge, Mass.: Harvard University Press, 1968). Scholars have looked

closely at the gendered consequences of the policies that were created by the two gender-segregated reform groups. See especially Barbara Nelson, "The Gender, Race and Class Origins of Early Welfare Policy and the Welfare State: A Comparison of Workmen's Compensation and Mothers' Aid in Women in Twentieth Century Politics, ed. Patricia Gurin and Louise Tilly (New York: Russell Sage Foundation, 1990), 413-436; and Linda Gordon, "What Does Welfare Regulate?," Social Research 55 (Winter 1988): 609-630. And more recently, Pitied But Not Entitled: Single Mothers and the History of Welfare (New York: Free Press, 1995); and Kathryn Kish Sklar, "Two Political Cultures in the Progressive Era: The National Consumers' League and the American Association for Labor Legislation," in U.S. History as Women's History: New Feminist Essays, ed. Linda K. Kerber, Alice Kessler-Harris, and Kathryn IGsh Sklar (Chapel Hill: The University of North Carolina Press, 1995); Sybil Lipschultz, "Gender and the Building of the American Welfare State: Legal Strategy, Gender Relations and the Problem of Legitimacy," presented at "Women in the Welfare State" Conference, Madison, Wisconsin, June 1989, in author's possession. 16 "Eighth Annual Session of the Council," Organization File, Council Minutes, 1907, National Consumers'League Papers, Box A6 ; National Consumers'League Eighth Annual Report for the Year Ending 1907 ; National Consumers' League Tenth Annual Report for the Two Years Ending March 2, 1909 ; "Minutes of the Executive Committee of the National Consumers' League," October 16, 1908, National Consumers' League Papers, Reel 4. On Kelley's early experience with the label and white list, see Kathryn Kish Sklar, Florence Kelley and the Nation's Work: The Rise of Women's Political Culture, 1830-1900 (New Haven, Conn.: Yale University Press, 1995)309-311. 17 For example, see Florence Kelley's justification for this move, Florence Kelley to Mollie Ray Carroll, September 26, 1925, Papers of the National League of Women Voters, Series 2, Box 70. 18 On Kelley's Illinois activities, see Kathryn Kish Sklar, "Hull House in the 1890s: A Community of Women Reformers," Signs: A Journal of Women and Culture 10 (Summer 1985): 658-677 and Sklar, Florence Kelley and the Nation's Work, 237-264. 19 The states with statutes passed between 1874 and 1932 were: Alabama; Arizona; Arkansas; California; Colorado; Connecticut; Delaware; District of Columbia; Idaho; Illinois; Kansas; Kentucky, Louisiana; Maine; Maryland; Massachusetts; Michigan; Minnesota; Mississippi; Missouri; Montana; Nebraska; Nevada; New Hampshire; New Jersey; New Mexico; New York; North Carolina;

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North Dakota; Ohio; Oklahoma; Oregon; Pennsylvania; Rhode Island; South Carolina; South Dakota; Tennessee; Texas; Utah; Vermont; Virginia; Washington; West Virginia; Wisconsin. 20 Wenham v. State,

65 Nebraska 394, 400.

21 John H. Fitch, "Historical Sketch of the American Association for Labor Legislation," speech presented at General Session on the American Association for Labor Legislation for the John B. Andrews Memorial Symposium on Labor Legislation, University of Wisconsin—Madison, November 5,1949. Reprinted in Guide to Microfilm Edition of the Papers of the American Associationfor Labor Legislation, Mary S. Arluck, ed. 22 See, in general, the organizational records of the National Consumers' League, Papers of the National Consumers' League, and especially the presidency of Newton Baker in the 1910s when he was also Secretary of War. John Commons held a similar position at NCL after Baker's resignation in 1923. Linda Gordon has found a similar split along gender lines in the context of development of the welfare state. Linda Gordon, Pitied But Not Entitled: Single Mothers and the History of Welfare (New York: Free Press, 1995), ch. 6 . On the role of Hull House in bringing groups of women together to work toward this goal see, Sklar, Florence Kelley and

the Nation's Work. 23

This was the position of Justice Brewer in Muller, 208 U.S. 421-423 (1908).

208 U.S. 421-423 (1908). For a recent treatment of the idea of race suicide and preservation of the race, see Gwendlyn Mink essay in Women, Welfare and the State, ed. Linda Gordon (Madison: University of Wisconsin Press, 1991), 92-123; Gwendlyn Mink, The Wages of Motherhood: Inequality in the Welfare State, 1917-1942 (Ithaca: Cornell University Press, 1995). 24 Muller,

25 Josephine Goldmark, Fatigue and Efficiency: A Study in Industry (New York: Russell Sage Foundation, 1912); National Consumers' League, Thirteenth Annual Reportfor the Year Ending 1912, Report of Florence Kelley, 15; National Consumers' League, Eleventh Annual Report for the Year Ending 1910, 30; National Consumers' League, Twelfth Annual Report for the Year Ending February 7, 1911, "Report of the Committee on Legislation and the Legal Defense of Labor Laws, by the Secretary, Miss Josephine Goldmark; "Meeting of the Executive Committee of the National Consumers' League," January 17,1908, Organization File, Reel 14; "Ninth Annual Session of the Council," 1908 Minutes, "Organization File," National Consumers' League Papers, Box A 6 . 26 Muller v. Oregon also makes this argument explicit and serves as an extension to working-class women of arguments previously made about restricting married women from practicing law in Bradwell v. Illinois, 83 U.S. 130 (1873). 27 Nancy Woloch, Women and the American Experience (New York: Knopf, 1984), chapters 11 and 12. On settlement houses also see Allen F. Davis, Spearheads for Reform: The Social Settlement and the Progressive Movement, 1890-1914 (New York and Oxford: Oxford University Press, 1967); Jane Addams, Twenty Years at Hull House (New York: Macmillan, 1910); Lillian Wald, The House on Henry Street (New York: H.Holt, 1915); and most recently Mina Carson, Settlement Folk: Social Thought and the American Settlement Movement, 1885-1930 (Chicago: University of Chicago Press, 1990); Robyn Muncy, Creating a Female Dominion in American Reform (New

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York and Oxford: Oxford University Press, 1991); Sklar, Florence Kelley and the Nation's Work. 28

Sklar, "Hull House in the 1890s;" and Sklar, Florence Kelley and the Nation's

Work. 29 Linda Gordon has been especially good at making this point about dependency. Linda Gordon, Pitied But Not Entitled: Single Mothers and the History of Welfare, 1890-1935 (New York: Free Press, 1994).

208 U.S. 421 (1908).

30 Muller v. Oregon,

Goldmark, Fatigue and Efficiency, 97-99,113,1830-1840; Muller v. Oregon at 421. On the use of racist rhetoric; see Gwendlyn Mink, "The Lady and the Tramp: Gender, Race, and the Origins of the American Welfare State," in Women, Welfare and, the State, ed. Linda Gordon (Madison: University of Wisconsin Press, 1991). On separate black and white women's reform groups, see Eileen Boris, "The Power of Motherhood: Black and White Activist Women Redefine the 'Political/ " 2 Yale Journal of Law and Feminism 25 (Fall 1989). 31

32 The Consumers' League brief in Muller relied on biological difference to justify a shortened workday and Brewer drew from this portion of the Consumers' League argument in framing his opinion in the case. For a discussion of the restrictiveness of hour legislation see Alice Kessler-Harris, Out to Work: A History of Wage-Earning Women in the United States (New York and Oxford: Oxford University Press, 1982), chapter 7. 33 Muller v. Oregon,

208 U.S. 421 (1908).

My understanding of Bunting is influenced by Judith Baer, The Chains of Protection: The Judicial Response to Women's Labor Legislation (Westport, Conn.: Greenwood Press, 1978), 88-91. 34

35 Brief for the Defendant in Error, In the Supreme Court of the United States, p. 72, Bunting v.Oregon (1914). Brief for Defendant in Error, In the Supreme Court of the United States, p.532, Bunting v. Oregon, 243 U.S. 426 (1917). 36 Bunting v. Oregon,

243 U.S. at 431-433.

37 Bunting v. Oregon,

243 U.S. at 429.

38 Bunting v. Oregon,

243 U.S. at 427-428.

39 Bunting v. Oregon,

243 U.S. at 436.

40 Bunting v. Oregon,

434 U.S. at 437-438.

41 Bunting v. Oregon,

243 U.S. at 438-439.

169 U.S. 366 (1898); Bunting v. Oregon 243 U.S. at 426 (for summary of opinion of the Court); 243 U.S. at 429 (for Plaintiff's argument that this was a wage law); 243 U.S. at 431 (for Defendant's opinion that this was an hour regulation); 243 U.S. at 438-9 (for conclusion of Court). 42 Holden v. Harding,

43 Muller v. Oregon, 208 U.S. 418 (1908). The court also mentioned personal and contractual rights as an area where men and women were different. 44 This observation is based on a comparison of the briefs submitted in Muller and Bunting; Felix Frankfurter and Josephine Goldmark, The Case For the Shorter

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Work Day, Brief for Defendant in Error (New York National Consumers' League, 1915): 532-533,545-546; Goldmark, Fatigue and Efficiency, 236-286. 45 This may be an instance when matemalism could backfire. It was adopted in this instance for the purpose of expanding state power for women, but ended up restricting the possible uses of the state for women. In their article, Koven and Michel find matemalism operated more expansively in other contexts; see "Womanly Duties." 46 The perceived link between a successful suffrage campaign and future women's labor laws was often articulated by social feminists. See for example, U.S. Department of Labor, Women's Bureau, Proceedings of the Women's Industrial Conference, Bulletin no. 33 (Washington: Government Printing Office, 1923). 47 Sophonisba Breckenridge, "The Equal Wage," speech in U.S. Department of Labor, Women's Bureau, Proceedings of the Women's Industrial Conference, Bulletin no. 33 (Washington: Government Printing Office, 1923), 106-107. 48 Much of this manifested in the struggle to attain a women's minimum wage. For example, see Women's Bureau, Department of Labor, Bulletin no. 23, The Family Status of Breadwinning Women (Washington: Government Printing Office, 1922); Felix Frankfurter and Mary Dewson, District of Columbia Minimum Wage

Cases. Jessee C. Adkins, et al, Constituting the Minimum Wage Board of the District of Columbia, Appellants vs. the Children's Hospital of the District of Columbia. Jesse C. Adkins, et al, Appellants vs. Willie A. Lyons. Brieffor Appellants, Supreme Court of the

United States, October Term, 1922 (Steinberg Press, 1923). 49 Stettlerv. O'Hara, 519 U.S.

629 (1917); Judith Baer, Chains of Protection, 91-93

so Adkins v. Children's Hospital, 261 U.S. 525 (1923). 51 Susan Ware, Partner and I: Molly Dewson, Feminism and New Deal Politics (New Haven, Conn.: Yale University Press, 1987), 97-102, details the relationship between Dewson and Frankfurter. 52

Brief for Appellants, Adkins v. Children's Hospital at 767.

53 The Nation 117 (1923): 129; U.S. Department of Labor, Women's Bureau, Share of Wage-Earning Women in Family Support; Bulletin no. 30 (Washington: GPO,

1923). m

Muller v. Oregon, 208 U.S. 412 (1908).

55 National Consumer's League, "The Case for Special Legislation for Women Workers," Women's Bureau Records, Record Group 8 6 , National Archives, Washington, D.C. 56 Brieffor Appellants

at 1053-70; Adkins v. Children's Hospital, 261 U.S. 525 at

552-53. 57 Brief for Appellants, Adkins v. Children's Hospital, 261 U.S.525 (1923) at 1053-70; Women's Bureau, U.S. Department of Labor, Bull. No. 33, Proceedings of the Women's Industrial Conference, 67-74; Speech of Mary Gilson, "What Women Workers Mean to Industry" and Merica Hoagland, "Labor Legislation for Women," 60. On barriers to women's voices in contemporary law, see Lucie White, "Unearthing Barriers to Women's Speech: Notes Toward a Feminist Sense of Procedural Jus-

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tice/' in At the Boundaries of Law: Feminism and Legal Theory, ed. Martha Albertson Fineman and Nancy Thomadson, (New York and London: Routledge, Chapman and Paul, 1991), 40-59. ss Adkins v. Children's Hospital, 261 U.S. 525, 552-53 (1923). See R. Jeffrey Lustig, Corporate Liberalism: The Origins of Modem American Political Theory, 18901920 (Berkeley: University of California Press, 1982) on the power of the state to limit reform in capital's interests. 59 Adkins v. Children's Hospital, 261 U.S. 525,570 (Holmes, dissenting).

Frankfurter and Dewson, Brieffor Appellants, especially at 762, 767, 896900, 1023-1024; Justice Sutherland's majority opinion turns equality rhetoric against women, Adkins v. Children's Hospital, 261 U.S. 525 (1923) at 539-62. 60

61 William Chafe, The American Woman: Her Changing Social, Economic and Political Roles, 1920-1970 (Oxford and New York: Oxford University Press, 1977) saw this era as the "nadir" of American feminism. More recently, Nancy Cott, The Grounding of Modem Feminism (New Haven, Conn.: Yale University Press, 1987),

depicts this period as formative to modem feminism, especially because of the confrontations over different definitions of equality. Substantive equality is one contested approach to equality. It is often discussed in contrast to formal equality. Formal equality treats everyone the same in order to ensure equal treatment. Substantive equality may treat various people differently, in order to achieve equality of results. Joan Hoff has observed that this type of equality, because it is group oriented, is diametrically opposed to equality that is individually based; Joan Hoff, Law, Gender and Injustice: A Legal History of U.S. Women (New York: New York University Press, 1991), 28. Substantive due process had played a role in women's labor laws since Lochner v. New York. When these cases were heard before the Supreme Court, the

justices tried to establish whether or not the law enacted by the legislature was "reasonable." What was reasonable tended to fall under the concept "judicial notice," or something that was so obvious the justices had to take notice of it. Often this meant that judicial notice was tantamount to judicial bias. First, in Muller, the justices relied on their observation that women were relatively weak and dependent and, therefore, in need of protection. The Stettler v. O'Hara, 243 U.S. 629 (1917) Court used special maternal functions in wage cases, without clarifying the connection; and in Radice v. New York 264 U.S. 292 (1924), the justices used their social awareness to conclude that delicate women should not work at night in restaurants. 62 For elaborations on this theme, see Sybil Lipschultz, "Social Feminism and Legal Discourse, 1908-1923," 2 Yale Journal of Law and Feminism 131 (1989).

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The Lady and the Tramp: Gender; Race, and the Origins of the American Welfare State GWENDOLYN MINK One of the results of this leaning toward social service is that Americans have lost all sincere convictions concerning the equality of all men, for they undoubtedly despise the blacks, the Mediterraneans, and many other races. — Andre Siegfried, America Comes of Age (1927)

CITIZENSHIP AND SOCIAL REFORM Classic theories of the rise of welfare states take European experience as the model and class dynamics as the mainspring for social provision. Different theories weigh differently the causal role of capital, labor, and the state in bringing political attention to the social welfare. But they commonly assume that class politics provided the template for social policy innovation, and they commonly conclude that the resulting worker-directed reforms and benefits mediated capitalist relations, purchased labor’s loyalty to established political arrangements, and expanded citizenship. The classic welfare state provided a solvent for the antagonism between capital and l^bor, for the contradiction between class and citizenship, and for the tension between capitalism and democracy. The American welfare state, too, developed at the contested intersection of capitalism, citizenship, and democracy. But where the nub of European developments was the struggle for political and social equality, the nub of American welfare state formation was the clash between racial diversity and an idealized American citizenry.1 Beginning with Bismarck, European governments experimented with social policies to offset the political effects of market 92

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inequality. These policies— for example, labor standards, social insurance— were aimed at the citizen-worker. Beginning with the first Roosevelt, municipal, state, and federal governments in the United States designed policies to offset the political effects of racial diversity. These policies were pitched to the citizen-mother. The early American welfare state targeted women rather than workers in policies devised to uplift democratic character. Women’s policies were the achievement of middle-class women’s politics. Middle-class women’s politics linked the problem of racial order to the material and cultural quality of motherhood. Motherhood, in this view, held the key to vigor in the citizenry. But the only way mothers from new races could produce ideal American democrats would be through reform and reward of maternal practice. Women’s politics won such reforms and rewards between 1900 and 1925 : wages and hours protections for working women, mothers’ pensions, and maternal and infant care programs. These policy victories socialized motherhood rather than citizenship. The socialization of motherhood found its logic in the prevailing gender ideology and found its force in the race anxieties of what, in practice, was white men’s democracy. Both gender ideology and white men’s democracy sprang from the core of American republicanism. Gender ideology held women apart from the political community, but for reasons that would ultimately establish women’s significance to the political community: namely, as the makers of men, as the wives and mothers of citizens. White men’s democracy deployed an idealized republican citizenship as ideological ballast against the political incorporation of diverse peoples— blacks, Asians, eastern and southern Europeans. American thinking about citizenship and the republican order staked citizenship to manhood and manhood to virtue, industry, and independence. This made political life a masculine affair and denied women a public political identity. It also racialized manhood and bred a moral politics excited by distinctions of character rather than distinctions of class. It struck a chord with old-stock working men, intellectuals, and politicians. It paved the way to the eventual political incorporation of white middle-class women.2 Race and gender interests in industrial America commonly clothed their claims in republican principles of manhood, motherhood, and citizenship. This common reliance on republican defenses developed from the demographic dynamics of nineteenth-century America: urbanization, emancipation, and immigration. The movement of new peoples into the political community gelled the race interests of settled Americans. These race interests expressed anxieties about the purity and perpetuity of American democracy. They tied the future of American democracy to the demographic and political hegemony of the people who founded it— “the people made this government not government the people.” 3Old-stock, “Teutonic” Americans pursued their race interests by

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articulating a social geology of citizenship based on race. The social geology of citizenship in industrial America was grounded in republican instructions on independence, industry, and virtue. But these instructions were not explicitly racial: they were explicitly gendered. Virtue demanded courage as well as willingness to sacrifice self-interest and risk life in defense of the republic. The capacity to soldier was thus the sine qua non of fearless and disinterested citizenship. Political education was preoccupied with this ethic between 1795 and 1860: schoolbooks treated American history as a sequence of military heroics.4 Public policy enforced this ethic after the Civil War: the pension system for Union Army veterans tied America’s first national social program to military service to the republic.5 Such martial patriotism, celebrated in schools and rewarded by wages from the state, was by definition in the republican universe a masculine responsibility and achievement.6 Civic activity— participation in the political community— was a further requirement for public virtue. But women could not vote, serve on juries, or independently claim American identity throughout the nineteenth and early twentieth centuries by dint of Constitutional silence, judicial interpretation, and legislative choice: the Constitution reserved for the states the right to deny woman suffrage; the courts enforced an explicit doctrine of masculine citizenship beginning in 1875; and the Congress subsumed married women’s nationality within that of husbands from 1855 until the 1930s.7 Industry— economic activity and productivity— required personal virtue of the ideal citizen and linked hard work to democratic character. The separation of home from work in developing American capitalism made industry a masculine virtue: separated from commercial productivity, home became a sanctuary from self-interest and competition and women’s domestic labor became a matter of mission rather than work.8Popular opinion defended industry as men’s sphere: as women moved into factory work the “cult of domesticity” gained fervor and social criticism stressed the desecrating effects of work on women’s character.9 Legal disabilities, too, ensured that women could not act as economic individuals.10 Even as jurists and legislators began to relax common-law barriers to women’s independent civil status— with passage of the mid-nineteenth-century Married Women’s Property acts, for example— they continued to withhold from women basic weapons for economic activity — full control of property and earnings and the capacity to contract.11 At the core of the citizen ideal lay the ethic of independence. The work-ethic protestant and liberal inheritances of American republicanism made independence the goal of industry, while the resilience of an older republicanism made independence the precondition for public virtue.12 Most important, the independence of citizens was widely regarded as the political community’s best defense against tyranny: dependent people could be bought and bent to the

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will of another. “Dependence,” wrote Jefferson, “begets subservience and venality, suffocates the germ of virtue, and prepares fit tools for the designs of ambition.” 13 Independence meant self-reliance, self-ownership, and autonomy. Because it required control of property, nineteenth-century Americans engaged in fierce struggles over the meaning of property.14But while American men debated the moral status of property in labor and property in things, women were denied the possibility of either. Law joined political theory to teach women’s natural dependence. Though manhood conferred citizenship, mere anatomy did not universalize men’s political personality. Ideal citizenship was a moral construction: conformity to the ideal required personal and public virtue. From the revolutionary period onward, Americans fretted about maintaining a virtuous citizenry: their republican heritage taught that the health and greatness of the polity depended on the character of its people.15Character was tied to lineage: republican vigor demanded “ sound republican stock.” 16 The contingent relationship between character and lineage tied the moral future of the republic to the homogeneity of its people. Concerns about character and homogeneity nagged many Americans throughout the nineteenth century. Many revolutionary-era Americans had urged “keeping separate from foreign mixtures . . . to keep . . . blood pure.” 17The legal order codified this advice in coercive matrimonial prohibitions: antimiscegenation laws and marital rights restrictions against slaves before the Civil War and against the mentally “unfit” after.18Reformers sought to enforce this advice through parental regulations: only those “who can give the world children with splendid physique, strong intellect, and high moral sentiment, may conscientiously take on themselves the responsibility of marriage and maternity” insisted Elizabeth Cady Stanton, for example.19Politicians worked to legislate homogeneity by regulating admission into American society. The sponsor of the Foran Act prohibiting the immigration of contract labor explained in 1884: No matter how high a moral standard a community may attain, the introduction into that community of any considerable number of persons of a lower moral tone will cause a general moral deterioration just as sure as night follows day. . . . Let us lift our beloved America . . . so that she may move onward toward the shining heights which the hopes of her nativity foretold.20

Despite many efforts to defend the American citizenry against diversity, industrialization and the republican egalitarian ethos itself destroyed the homogeneity of the population. Laissez-faire capitalism emphasized price over virtue and the “free flow of labor” over protection of the “republican stock.” At the same time that capitalism bred demographic change, persistent republicanism fired democratization. These synchronous developments secularized

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the political community. The extension of citizenship rights to adult white men by the Jacksonian period and to nonwhite men, at least in principle, after the Civil War leveled the moral distinctions upon which ideal citizenship rested. White manhood suffrage allowed unreformable men into the political community: drunkards, papists, paupers. Worse, universal manhood suffrage offered men incapable of manly virtue the rights of ideal citizenship: blacks, popularly regarded as incapable of self-possession, and new immigrants, widely viewed as incapable of self-reliance.21 The fact of racial and ethnic heterogeneity nourished anxieties about the future of the republic. Emancipation and industrialization distorted the American republican universe: it brought men whose poverty stigmatized them as dependent to the brink of political membership. The overlapping characteristics of race, poverty, and dependency among new citizens sharpened anxieties, breeding a moral politics aimed at reclaiming citizenship for old-stock white men only.22This politics made race and nationality the new moral ratchets of citizenship. Republican gender ideology eased the development of a racialized citizenship. Gender ideology opposed manhood to womanhood, fastening manhood to productivity and independence and womanhood to servility and dependence. Old-stock Americans drew from this opposition the racial basis for political membership. By assigning feminine traits to ethnic men, old-stock Americans not only neutered allegedly servile and dependent men but marked them as a peril to republican liberty as well. For while woman’s dependency was the mainspring of woman’s virtue, men’s dependency was the sign of men’s inadequacy. The flip side of dependent womanhood was virtuous motherhood; the flip side of dependent manhood was the germ of tyranny. Thus the eastern or southern European immigrant was denounced as “the state-managed European laborer who declines to take care of himself in the American fashion;” 23 the “ slavish” black man and the Asian “coolie” were deemed “by the unalterable structure of their intellectual being, voluntary slaves;” and all were ridiculed as “people who have never conceived the idea of independent manhood.” 24 Samuel Gompers’ apothegmatic title posed the problem directly: Meat vs. Rice: American Manhood vs. Asiatic Coolieism: Which Shall Survive?

By the late nineteenth century, democratic politics had become a politics of subordination and exclusion: through immigration restrictions, segregation, cultural regulation, barriers to suffrage, and exclusion from unions.25But these were only partial solutions to the problem of demographic change. Many new immigrants could vote, more were coming, and blacks could claim Constitutional protection— at least enough to force jurists to explain and justify segregation and disenfranchisement.26 The “corruption of the Republic” had already begun. While the American republican inheritance warned against such corruption,

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it also offered a defense against corruption. That defense was womanhood. For despite her political invisibility woman was nevertheless assigned a weighty political significance as the guardian of male virtue and reproducer of the (white) republican order.27 Woman’s exile from the political community was premised on her natural vocation as wife and mother. According to the canons of republicanism and domesticity, woman’s vocation gave her “the reins of government. . . [Mothers] give direction to the moral sentiments of our rising hopes, and contribute to form their moral state.” 28Woman’s political assignment gave the winning edge to legal improvements in her civil status during the mid-nineteenth century: for example, married women’s property protections and the maternal child custody preference.29 It brought the state into proximity with the family: for homes are the “nurseries of the state” and “while with their interior administration, the State should interfere but little, it is obviously of the highest public concern that it should, by general laws adapted to the state of things around them, guard against disturbances from without.” 30It also gave women a wedge into the political community: from it some women would forge and claim woman’s political identity, woman’s distinctive relationship to the state, and woman’s responsibility for national salvation.31 From her role in political reproduction woman promised perpetuity to the republican order. Yet in the context of demographic change, woman could not deliver on that promise simply by nurturing citizen-sons and correcting errant citizen-husbands: the citizen-race was at stake. “The home is the social workshop for the making of men”— and thus the linchpin of republican order— but poverty and demographic change put the American home at risk of dissolution.32 Recognition of the reciprocal social obligations of home and political community pushed woman’s sphere into the political community itself, where some women would receive from other women instructions on home and motherhood. Industrial America’s race challenge politicized womanhood and socialized woman’s work. The women’s politics that arose in response to this challenge accepted woman’s place while transforming it. “Woman’s place is Home,” wrote suffragist Rheta Childe Dorr:

But Home is not contained within the four walls of an individual home. Home is the community. The city full of people is the Family. The public school is the real Nursery. And badly do the Home and the Family and the Nursery need their mother. . . . Woman’s place is Home, and she must not be forbidden to dwell there. . . . For woman’s work is race preservation, race improvement, and who opposes her, or interferes with her, simply fights nature, and nature never loses her battles.33 Women’s politics was a democratizing politics, claiming full citizenship for women. It was also a gendered politics, staking woman’s citizenship to woman’s role— “Even their political liberty they want only because it will en-

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able them to get other things . . . which tend to conserve the future mothers of children”— and forging a relationship between the state and woman’s place— “If producing citizens to the State be the greatest service a woman citizen can perform, the State will ultimately recognize the right of the woman citizen to protection during her time of service” .34 Women’s politics was moreover a racial politics, tying the future of the republic to uplift of the citizenry. In the main, this politics was directed toward the new immigrant population— the eastern and southern Europeans who moved in droves into northern cities during the late nineteenth and early twentieth centuries. In the view of women reformers, the uplift of new Americans could be achieved through education: practice in “the art of thinking,” in “right living,” and in the organization of “their own activities for themselves” would help “combat successfully the deadliest foe of this Republic, the lowering of citizenship by industry.” 35 As natural educators, mothers held the key to the rehabilitation of republican citizenship. Since all women were given this natural vocation, they shared a common identity that counterbalanced rigid social distinctions of race and ethnicity. Still, uplift ultimately depended on “highly intelligent mothers” who met their “ home responsibilities” to train future citizens.36 Quality control of the conditions of motherhood as well as of mothers themselves thus became the focus of women’s politics. Old-stock, middle-class women waged their politics in defense of motherhood and toward the end of political regeneration. When they did this they counterposed the possibility of racial assimilation to the politics of racial exclusion. And they quickened development of a welfare state by asserting a social right to the gender roles that defined woman’s sphere. GENDER, RACE, AND SOCIAL PROVISION Gender politics does not by itself explain the American path to social provision. In western Europe, too, manhood and motherhood were important political paradigms. Democratizing movements were often confined to gender spheres: the language of rights indelibly associated full citizenship with manhood; while women’s movements often grounded women’s political identity and social claims in “mothers’ needs.” 37 Further, gender roles were typically encoded in social policies: early factory acts offered protections to women only; labor standards and income policies included maternity provisions; some social insurance schemes discriminated against women, for example, by denying married women independent coverage and by privileging skilled workers.38 But despite its gender bias, European social policy sprang primarily from tensions between class and citizenship and linked work, need, and social entitlement.39Thus the politics of social policy has been a distributional politics;

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its gender dimensions have revolved around the ways in which the social wage has assumed, reproduced, or intensified women’s economic dependency. What was distinctive about the American pattern was that it was drawn by race and mediated by gender. Where European social politics took place within a paradigm drawn by capitalism and democracy— class and citizenship — American social politics took place within a paradigm drawn by diversity and democracy. Where European social politics generated policies directed toward the conceptually genderless worker, American social politics generated policies directed toward the woman citizen and through her to the “well-being of the race.” This is not to say that capital, labor, and political elites in the United States did not debate worker-directed reform. Sectors of capital were instrumental in securing accident insurance; some segments of labor supported the idea of social insurance; Progressive political elites called for a broad array of social protections ranging from labor standards to pensions to health care. But in the main, capital preferred private sector management of the relations of distribution; unions stuck to their doctrine of voluntarism; while political elites ran up both against an intransigent judiciary and against a powerful ethic warning that material benefits would breed dependence in the citizenry. In combination these factors closed the state as the arena for elaborating a conceptually genderless social citizenship.40 But gender and race pressures on American democracy combined to open the state to elaborating woman’s social citizenship. While men’s citizenship and social protection could not be reconciled as long as democratic character was staked to independence, woman’s citizenship required social protection because of woman’s special responsibility for the future of the republic. Union labor— a likely voice for social provision in other settings— articulated this view of the gendered nature of citizenship and in so doing helped scuttle most national initiatives for worker-directed reform. American Federation of Labor leaders, most notably Samuel Gompers, counterposed dependence to independence, need to productivity, state-management to self-help, coercion to volition, “ servility” to “red-blooded rugged independence and will power.” 41 Though grounded in the ethic of fraternal associationalism, steeped in the exigencies of organizational self-interest, and driven by worries occasioned by courts and immigrants, the call to voluntarism was at its core an admonition to manly independence. American men eschewed social provision because the essence of their independence was the ability to do for themselves (and for their wives and children): through productive labor, the ownership of property in skill, and participation in voluntary and autonomous associations, such as unions. In this view, governmental interference in the realm of men’s work was justified only to provide employment when the market did not (i.e., public works), to offer pensions as the deferred wages of military service (i.e.,

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Civil War pensions and the proposed Old Age Home Guard of the United States Army), and to organize material support when manly independence was physically impaired in industrial accidents (i.e., workmen’s compensation).42 Race politics heightened the perceived incompatibility between social provision and men’s citizenship. If new immigrant and black men were not economically independent or were not adequate providers, this was because they were “ servile,” “slavish,” “coolies,” and “ serfs.” Social provision would validate debased manhood by servicing it: “ ‘public welfare’ can have little place in a society of equals. . . . [It] has to do with the weak, the defective, the ineffective, the ignorant, and the incorrigible. . . . What can be the result of this . . . but the softening of the moral fibre of the people?” 43 The idea that real men provided, rather than needed, meshed with ideas tying vigor in a democracy to the independence of its citizenry. If democratic vigor hung on the independence of citizens, then the future of the republic required reproduction of self-reliant and materially independent men. This gave both scientific and ethical authority to the punitive side of voluntarism: “Next to alcohol, and perhaps alongside it, the most pernicious fluid is indiscriminate soup.” 44Thus charities organizer Josephine Shaw Lowell advocated the teaching of values rather than the allocation of benefits: “It is cruel and cowardly of us in the extreme to make the path of dependence easy.” Others worried that governmental response to social needs would lead to the elimination of the fit and the survival of the unfit and urged more drastic measures: “For every effort expended in care of the unfit individual, equal effort must be intelligently expended toward the eventual elimination of the unfit stock which produced the unfit individual.” 45 The way to eliminate “unfit stock” was through immigration restriction, proper breeding, and removal from the political community. Men’s loss of economic independence in poverty problematized men’s citizenship. Different segments of the political community responded to the coincident racial and economic geology of masculine America along a continuum ranging from admonition to subordination to exclusionism. Meanwhile women’s lack of dependable men made woman’s dependency a public problem. As woman’s dependency took on public significance, woman’s citizenship— woman’s relationship to the state— was transformed. While men’s work and men’s families continued to be sealed from the state until the New Deal, women’s work and fatherless families entered the protection of the state during the Progressive era. Protection carried benefits for women— minimum wages, maximum hours, mothers’ pensions. But there were also costs. These policies placed women’s needs and canons of womanhood at the core of woman’s political personality.46 And they made racial uplift rather than social equality the principle of women’s social citizenship. While gender difference was the cornerstone of the early American wel-

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fare state, the social geology of race in America drove the politics of welfare state building. The interaction between gendered citizenship and racial rehabilitation was mediated by early twentieth-century women’s politics. Various middle-class reform movements dominated by women— suffrage, settlements, education, domestic science, temperance— comingled in a broader politics that seized the political space vacated by labor, capital, and the state on social welfare matters. Seemingly by default, proponents of gender benefits tied to women’s distinctive citizenship established the parameters for social provision during the first two and a half decades of the twentieth century. The policies developed within these parameters offered wages for motherhood through protections of women’s “racial productiveness.” 47 As they socialized motherhood, these policies also politicized woman’s citizenship:

[Woman] has learnt to be a mother and a worker in her home; she begins to realize what new heights of achievement may be hers when she shall become also a worker and a mother in the world without. . . . When all doors are open to women . . . the qualities of conservation and careful building, of which I have spoken as belonging to motherhood, will be found to have a social value far too great to permit of further atrophy and disuse. . . . [A] very large part of the sedentary administrative and execu­ tive work of government offices and business enterprises, which now devolves upon men, will be performed by women, [so] that great numbers of men will thereby be left free for the more creative or physically energetic branches of work, to which they are temperamentally and bodily most suited.48 The labor and maternity legislation of the industrial period transformed women’s relationships to the political realm. Though these policies hitched women’s citizenship to gender principles, they affected individual women variably depending on race, class, and political position. Some middle-class, old-stock women became direct participants in politics and government— as members of commissions, school superintendents, health officers, social workers, and even as chiefs of the federal Children’s and Women’s Bureaus 49 Meanwhile many working-class and poor ethnic women became political and governmental dependents subject to regulation by and supervision from courts, legislatures, and middle-class women.50 Women’s policies turned on motherhood. Middle-class women reformers claimed woman’s right to minimal conditions of motherhood and argued government’s responsibility to respond to social needs on the basis of gender difference. According to Florence Kelley, leader of the National Consumers’ League and champion of wages and hours protections for women:

The inescapable facts are . . . that men do not bear children, are free from the burdens of maternity and are not susceptible in the same measure as women, to the poison­ ous characteristic of certain industries. . . . The inherent differences are permanent. Women will always need many laws different from those needed by men.51

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Under the leadership of women like Jane Addams, Josephine Goldmark, and Florence Kelley, women’s politics pressed motherhood into the service of women’s rights and women’s wages. Their policy victories— Muller v. Oregon, mothers’ pension legislation in many states, creation of the Women’s Bureau, and the Sheppard-Towner Infant and Maternity Care Act of 1921— established reciprocal obligations between government and at least some of its citizens. But by welding motherhood to woman’s citizenship, women’s politics problematized claims for gender equality. It further compromised the possibility of racial equality when it offered motherhood as the solvent for diversity in America. Arguing for policies tied to gender difference, women’s politics interposed women reformers as managers of racial difference. This politics promoted an uplifted universal motherhood, one that would achieve both uplift and universality through the assimilation of Anglo-Saxon norms. Assimilated motherhood was women reformers’ weapon against the blows to democracy dealt by poverty and multiculturalism. Women’s politics thus replayed the race anxieties of republican America. Race had long been a sticking point for the women’s movement. During Reconstruction, suffragists had responded to the Fifteenth Amendment’s guarantee of manhood suffrage by picking up the cudgel of race in their defense of women’s claims.52Elizabeth Cady Stanton had raged in 1866 that:

In view of the fact that the Freedmen of the South and the millions of foreigners now crowding our shores, most of whom represent neither property, education, nor civiliza­ tion, are all in the progress of events to be enfranchised, the best interests of the nation demand that we outweigh this incoming pauperism, ignorance and degradation, with the wealth, education, and refinement of the women of the republic.53 Stanton’s linkage between race and republic was embellished by Susan B. Anthony several years later, when she harnessed masculinist republicanism’s association of race and manhood for suffragist purposes:

While the dominant party have with one hand lifted up TWO MILLION BLACK MEN and crowned them with the honor and dignity of citizenship, with the other they have dethroned FIFTEEN MILLION WHITE WOMEN—their own mothers and sisters, their own wives and daughters—and cast them under the heel of the lowest orders of manhood.54 Similar racist appeals and racial reasons— regarding blacks in the South and new immigrants in the North— plagued the twentieth-century suffrage movement.55 Many suffragists saw danger in the electoral power of the “lowest orders of manhood” and accordingly fashioned strategies to retract the political rights of “lesser men” while extending those rights to the “women of the republic.” NAWSA (National American Woman Suffrage Association)

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proposals for educated suffrage bore more than a family resemblance to the literacy tests enacted contemporaneously in the South. As explained by one suffragist in 1906:

The National has always recognized the usefulness of woman suffrage as a counter­ balance to the foreign vote, and as a means of legally preserving White supremacy in the South. In the campaign in South Carolina we . . . never hesitated to show that the White women’s vote would give supremacy to the White race. And we have also freely used the same argument to the foreign-born vote.56 Racial concerns also figured prominently in the early twentieth-century social reform movement: in settlement houses, domestic science groups, mothers’ clubs, consumers’ leagues, and social work. But the issue for reformers was “race improvement” rather than white supremacy. Writing of the new immigrants serviced by Hull House, Jane Addams, for example, lamented: “Their ideas and resources are cramped. The desire for higher social pleasure is extinct. They have no share in the traditions and social energy which make for progress. Too often their only place of meeting is a saloon, their only host a bartender; a local demagogue forms their public opinion.” So, Addams prescribed: “One thing seemed clear in regard to entertaining these foreigners: to preserve and keep for them whatever of value their past life contained and to bring them in contact with a better type of American.” 57 Settlement houses and schools were key agents of this process of gradual assimilation: “An Italian girl who had had lessons in cooking . . . will help her mother to connect the entire family with American food and household habits.” 58 Though clearly race conscious, many of the leading women reformers rejected the harsh exclusionism of nativists, Southerners, and late nineteenthcentury suffragists. The universality of the maternal vocation implied the possibility of a universal maternal virtue. This possibility combined with the fixed realities of poverty and diversity to produce prescriptions for women’s uplift. Faith in uplift rooted in the universality of gender difference pushed women into a racial politics quite orthogonal to the political eugenics that dominated debates within white men’s democracy. The racial politics of women reformers found its logic in woman’s distinctive citizenship. Political theory had divided the republican project into men’s and women’s spheres. Masculine citizenship was a political project, requiring defense of the republican order. Feminine citizenship was an educational project, requiring reproduction of the republican order: “The prime function of woman must ever be the perpetuation of the race.” 59 Though concern for “ sound republican stock” was shared across these spheres, for women reformers the educational ethic bore the idea of assimilation, located it in motherhood, and substituted it for the politics of exclusion.

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The idea of assimilation blended the incipient— if ambivalent— racial liberalism espoused by Progressives like Theodore Roosevelt with the racial/ cultural regulatory prescriptions advanced by temperance women, charities organizers, and many birth-control advocates. Women reformers shared Roosevelt’s premise that immigrant culture would yield to democratic habits, creating a distinctive American race: “Our object,” he wrote, “is not to imitate one of the older racial types, but to maintain a new American type and then to secure loyalty to this type.” 60One way to achieve and secure the American type"was through education. Another was to “dry up the pestilential social conditions in our great cities, where anarchistic organizations have their greatest possibility of growth.” 61 Still another was to regulate the practice of motherhood, by linking social benefits to “right living” and Anglo-Saxon morality. If the assimilationist impulse of women reformers resonated with Rooseveltian assumptions, the assimilationist methods of many of these women— child education advocates, settlement house workers, social workers— drew from the regulatory spirit of sister movements such as temperance. But women reformers resisted reproducing the stem prohibitions of temperance. Rather than forbid depraved cultural practices, they sought to educate newcomers to American habits and values:

What women must do . . . is to survey their national situation, not from the narrow point of view of reforming the surface morals of their countrymen, but from the stand­ point of experts in race improvement. The world is in a mess, and the spectacle of women trying to extricate it from the mess by applying moral mustard plasters like anti­ cigarette or even anti-liquor laws, makes me tired. . . . The first essential is more and better education . . . education of the bodies and souls, as well as the minds of people, to make them understand their place in the universe as efficient, useful, productive agents.62 When women reformers found their efforts to uplift frustrated by the extremes and immutability of poverty, they questioned economic conditions and in so doing socialized the problem of poverty. As Addams, Kelley, and others examined poverty, they introduced a new perspective on the relationship between poverty and race. For these reformers, poverty was not an indelible racial characteristic or a hereditary disqualification from citizenship. Rather, it was an impediment to racial uplift and thus to the rehabilitation of the citizenry. Many women reformers thus embraced efforts to treat the effects of poverty (“ Shall I preach temperance to men whose homes are vile tenements?” wrote Florence Kelley) and to counter some of its causes (e.g., through minimum wage legislation). Alleviate the miseries of poverty, Kelley argued, for “ this is the true work for the elevation of the race.” 63 As another reformer explained in her study of blacks in Chicago:

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While the morality of every young person is closely bound up with that of his family and his immediate environment, this is especially true of the sons and daughters of colored families who, because they continually find the door of opportunity shut in their faces, are more easily forced back into their early environment, however vicious it may have been.64 Reflecting this view, many white women reformers supported the NAACP and the National Urban League in their efforts to alleviate poverty and open opportunity. These arguments took the edge off race thinking and identified an agenda for reform by political intervention. But women’s reform agenda still assumed the idealized republican association between independence and worthy citizenship. Thus women reformers appealed to government to succor women’s dependency rather than remedy economic inequality. Women’s reform agenda fitted well with the assumption that the presence in the citizenry of able-bodied poor men— either actually or potentially dependent— threatened the republic. The formal equality of dependent men aroused old fears of tyranny and corruption— fears of the perils posed to liberty by men who could be bought, and fears empirically grounded in the experience of patronage democracy. Though women reformers repudiated the view that poverty was a racial attribute— that some races were wholly unfit for independence— the persistent coincidence of race and poverty excited concerns about the compatibility of diversity and democracy. So women reformers worked to turn ethnic men into American men— to enforce “the citizen’s responsibilities of fatherhood.” 65 They taught the work ethic and vocational skills to young boys, instructed poor or unemployed men to seek jobs rather than relief, and encouraged unionism.66Such lessons on productive and associational life— on the pursuit of manly independence— were the mainstay of assimilationist methods directed toward men. When assimilation worked, race diminished as a demarcation of citizenship. But masculine citizenship remained intact. While women reformers sought to manage the effects of diversity on masculine citizenship through admonitions to self-help and self-discipline, they treated the effects of diversity on feminine citizenship through the socialization of motherhood. Individualized, characterological reform pursued by social servants rather than social benefits provided by the state held the key to making independent men of the able-bodied, racially different poor. One result was that the socialization of citizenship proceeded along gender tracks. Poor men, mainly of “lesser races,” were thus put in problematic relationship to the expanding state. Woman-directed reform took dependent womanhood as its premise and made the state the key to managing and mitigating that dependence. Gender

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difference anchored in a common maternal vocation universalized womanhood in a way that permitted women of “lesser races” to participate in the rehabilitation of American democracy. But this required intervention and direction to create republican mothers. Education offered one route to reform— education in proper sanitation and nutrition, in prenatal and infant care, and in sewing, cooking and child rearing. Settlement houses, Progressive schools, social workers, and nurses could provide much of this instruction. But education of this type offered only a partial solution. It was largely remedial, directed towards correcting the habits of “ignorant mothers.” More complete rehabilitation of immigrant, workingclass motherhood required appropriate instruction for future mothers through the publicly managed school system. Thus women reformers pressed curricular reform:

The schools may truthfully be said actively to divert the little daughters of wage-earning families from home life. . . . For the schools teach exactly those things which prepare girls to become at the earliest moment cash children and machine tenders: punctu­ ality, regularity, attention, obedience, and a little reading and writing—excellent things in themselves, but wretched preparation either for domestic service as an alternative choice of occupations, or for homemaking a decade later on the lives of the pupils.67 One success on this front was achieved in New York, where promoters of domestic science introduced into the grade schools a syllabus that began with topics such as “the psychology of races— expression of the home ideal in races other than the Anglo-Saxon,” “early social life of the Anglo-Saxon people,” and “the home life of the Anglo-Saxon vs. the communistic family system.” 68 The rehabilitation of motherhood further required purposive government action to treat the effects of women’s economic dependency. Poverty consigned many women (and children) to the world of work, impeding fulfillment of women’s mission in the home. In poverty, motherhood was disgraced by need and squalor; at work, maternal capacities were impaired by physical strain and long hours.69 This “denied women their birthright . . . [their] part in our common racial life.” 70 At home, women’s “racial productivity” was impeded by men who did not earn a family wage, could not find work, could not perform work, would not meet the obligations of fatherhood, or simply were not there.71 Dependent manhood did mischief to motherhood and through motherhood to republican order. Curing these mischiefs required alleviating women’s poverty and regulating the conditions of women’s work. From the standpoint of women reformers, amelioration of the conditions of motherhood could not be accomplished by mere education or moral uplift. The creation of republican motherhood was a public burden: woman’s dependency placed the conditions of motherhood beyond individual women’s control, and woman’s role in politi-

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cal reproduction entitled her to public support. Recognition of the reciprocal obligations of mother and state encouraged a renegotiation of the location and import of woman’s sphere. This in turn transformed woman’s relationship to the state. The struggle for women’s political representation placed women in direct conversation with government, while the achievement of suffrage ended women’s virtual representation through men. The quest for social support for motherhood encoded gender in state policy, while the success of gender-based reform formalized women’s social dependency even as women achieved nominal political independence. Women reformers tied their case for political rights to their social agenda, sometimes arguing that the absence of feminine virtues in politics prolonged social problems, other times citing legislative successs in woman suffrage states to demonstrate “the regenerative power of the ballot in service of the family.” 72As Jane Addams explained,

Woman’s traditional function has been to make her dwelling-place both clean and fair. Is that dreariness in city life, that lack of domesticity . . . due to a withdrawal of one of the naturally cooperating forces? If women have been in any sense responsible for the gentler side of life which softens and blurs some of its harsher conditions, may they not have a duty to perform in our American cities? 73 Elsewhere, she attributed the failures in “city housekeeping” to women’s exclusion from what was properly women’s political work: “The men of the city have been carelessly indifferent to much of this civic housekeeping, as they have always been indifferent to the details of the household . , . may we not say that city housekeeping has failed partly because women, the traditional housekeepers, have not been consulted as to its multiform activities?” 74 Addams rested her arguments for women’s representation on an analogy between city and household. For Addams as for other women reformers, this analogy ran much deeper than the metaphorical association between “housekeeping” and “sweeping out” vice and corruption in city politics. Much of women’s traditional activities— as guardians of health, morals, and cleanliness — had been appropriated (and poorly pursued) by city governments. But these activities continued to belong to woman’s sphere: if performed by government, then women belonged in government and politics. These arguments fed into a feminization of political life. Appealing first to Plato, and then to history, Addams collapsed city and household, state and family, within the republican order.75 She took the republican association of citizenship and the common defense, redefined it, and thereby expanded citizenship and government responsibility. Whereas a voice in the republic had once properly belonged to those who would bear arms to defend it, voices in the city now belonged to those who would protect and cleanse it. The enemies

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of the modem city were not external military foes but internal problems of pestilence, corruption, and decay. Women, Addams insisted, were essential to the defense of home and city against “the dangers incident to modem life” :76

To test the elector’s fitness to deal with this situation by his ability to bear arms, is absurd.. . . Certainly the military conception of society is remote from the functions of the school boards, whose concern it is that children be educated, that they be supplied with kindergartens and be given a decent place to play. The very multifariousness and complexity of a city government demands the help of minds accustomed to detail and variety of work, to a sense of obligation for the health and welfare of young children, and to a responsibility for the cleanliness and comfort of others.77 Thus Addams, Kelley, and others linked women’s political rights and social reform. Implicit in this construction of woman’s citizenship was the promise that women’s political participation would clean up politics and industry; in return government would deliver support for the woman citizen. Government conferred its support when it opened access to old-stock, middle-class women to investigate, lobby, and litigate for social reform. Women reformers used their access to investigate factory conditions and economic burdens that debased poor women’s motherhood. They lobbied and litigated for wages and hours protections for women; though they had to wait until the 1930s to achieve wage guarantees, they won hours protection in the first decade of the twentieth century— a striking departure from laissez-faire constitutionalism and a breakthrough for social intervention by government. But women’s labor policy victories also entrenched the gendered readings of the Fourteenth Amendment that began with the Bradwell Court’s declaration that “the paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother.” 78 Explicitly on the bases of motherhood and “the fact that woman has always been dependent upon man,” women’s labor standards traded women’s liberty of contract for protection of the “well-being of woman . . . and the well-being of the race.” 79 According to the logic of woman’s separate citizenship, due process protections varied by gender and the general welfare was held to travel more directly through women than through men.80Borrowing the husband’s prerogative to supervise woman’s contract decisions, which underpinned the reasoning of Bradwell, the state claimed supervision of dependent motherhood when the Court affected women’s labor contracts with a public purpose in Muller. This met the test posed by women reformers who held that “the state must be in its legislation and its political operation a supplement to the integrity and moral righteousness of the home, or it will inevitably disintegrate and become a destroyer of the home.” 81 Women reformers expanded the state’s motherhood-enhancing and familysaving activities when they secured a federally funded program that directly

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reached maternity itself. A victory for Julia Lathrop, Florence Kelley, and a broad coalition of women’s groups, the Sheppard-Towner Maternity and Infancy Protection Act of 1921 provided for professional instruction of expectant mothers in prenatal and infant care. Congress’ overwhelming approval of the act testified to women’s political significance both as policy advocates and as mothers. But “it seemed as though the women were just doing on a larger platform what women had been always supposed to do— care for women in childbirth, welcome the newborn and nurture the children.” 82 The United States’ first national social welfare measure, the Sheppard-Towner Act, tied health policy to motherhood and made social protection a gender benefit. Similarly, the mothers’ pension programs developed by the states extended social protection to woman’s gender role. These policies enjoyed remarkable support: by 1915, only six years after the White House Conference on the Care of Dependent Children proposed social protection of “children of reasonably efficient and deserving mothers who are without the support of the normal breadwinner,” twenty-nine states had instituted mothers’ pension programs. By 1919, another ten states had followed suit.83Like labor and maternity legislation, mothers’ pensions were conceived as a means to halt the erosions in motherhood wrought by work and poverty so that even poor women could “lead in the awakening of mankind to a sense of responsibilities resting upon the race, to provide each newborn soul with an environment which will foster its highest development.” 84 But unlike women’s labor standards and maternity protections— which did not explicitly seek to remove women from waged work— mothers’ pensions were predicated on the view that “family life in the home is sapped in its foundations when the mothers of young children work for wages.” Because death or injury of husbands forced the breadwinning role upon mothers, public provision was needed to preserve the integrity of motherhood. Thus, for example, mothers’ pensions were often seen as the corollary to workmen’s compensation. As Florence Kelley explained:

If a railroad has killed the breadwinner of a family, the railroad industry is not now legally the debtor of his widow during widowhood, and of the fatherless children even until the sixteenth birthday. If the breadwinner is not killed but disabled by an injury incident to his work, or by an industrial disease, transforming him from the bread­ winner to a dragging burden upon his wife and children, they need not less but greater indemnification.85 This pathbreaking governmental intervention in affairs of distribution conditioned social provision on the absence of men, made manless women dependent on the state, and drew from women’s dependence governmental prerogative to oversee and regulate motherhood. Mothers’ pension legislation thereby added a coercive dimension to woman-centered reform. While labor

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and maternity legislation addressed the economic (and cultural) conditions of motherhood, mothers’ pensions more directly and more rigidly policed and prescribed the moral qualities of motherhood. Most states conditioned assistance on the racially charged “moral fitness” of the individual mother as well as on her willingness to comply with restrictions on regular wage work. This brought motherhood under surveillance, as juvenile courts, local governments, and relief agencies investigated home conditions and women’s morality.86 If mothers’ assistance was a first step away from charity and toward entitlement,87 that step was taken in the interest of race and republic. Women’s benefits were consequently tied not to social rights but to political necessity. As one advocate explained:

The only chance that exists . . . of winning [the poor, husbandless, worthy mother] an environment in which she can maintain a home for herself and for her children as selfrespecting as the home next door is to annex that home of hers to the public domain. . . . In the private domain, self-respect is, for her and for those whom she is training to democratic citizenship, permanently impossible.88 Recipients of mothers’ pensions found themselves in something of a wage bargain, wherein “compensation” for motherhood was paid to women who met the terms of republican motherhood. Women’s income support was conceived as remuneration for maternal work— as “payment of money . . . like the payment made by the state or nation to soldiers, sailors, or others who have rendered public service.” 89 But that work was subject to quality control as a condition of remuneration, for the value of maternal work hung on mothers’ contributions to the “racial welfare.” 90 Thus in exchange for a meager stipend, a recipient had to be certified “a proper person, physically, mentally, and morally fit to bring up her children.” 91 “Moral fitness” was encoded with Anglo-Saxon biases— for temperance, nuclear-family households, American cooking. Though the criteria for moral fitness were sometimes delineated in pension legislation, wide discretion was ordinarily delegated to administrators and social workers— most of whom were white and middle class. Discretion allowed for the imposition of Anglo-Saxon criteria, as well as for racial exclusions where uplift was seen as either undesirable or impossible. Discretion meant, for example, that black mothers, barred from eligibility in some southern states, were elsewhere denied entitlement by policy managers.92 Further, both law and discretion invited pension agencies to police their clients regularly to enforce fitness: evidence of smoking, lack of church attendance, poor hygiene, male boarders, or faulty budgeting could result in withdrawal of a mother’s allowance. According to one agency, pensions were “ a powerful lever to lift and keep mothers to a high standard of home care.” 93 For mothers who did not meet the criteria of Anglo-Saxon morality, denial of pensions represented a form of political eugenics.

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Mothers’ assistance was the cornerstone of the American welfare state. Not only was it the first income security program, but it was the progenitor of a major pillar of the contemporary welfare state, aid to dependent children.94 Grounded in the ideology of republican motherhood, mothers’ pensions broke through the rigidities of laissez-faire capitalism to make the creation of “sound mothers” a social responsibility. At a time when the necessity of sound fathers was seen as men’s burden— when the idea of social insurance pegged to waged work was heartily rejected in most quarters— the social contingency of motherhood won resounding consensus. THE WAGES OF MOTHERHOOD The origins of the American welfare state lay in gender-based solutions to what was widely perceived to be a racial problem. This left problematic legacies for the politics of social equality. Women were granted a kind of social citizenship but at the cost of equality both for themselves and for “lesser men.” Hung on gender difference, women’s citizenship justified women’s separate-*and disparate— treatment under law until the 1970s. And animated by the twin anxieties of race and republic, men’s citizenship denied legitimacy to governmental mitigation of men’s economic dependency. Meanwhile, the gender focus of early twentieth-century social provision made for neglect of reforms — educational expenditures, for example— that might have expanded men’s citizenship even on its own terms.95 The gender-based solutions of the early twentieth century were carried forward in the New Deal. During the New Deal, the mothers’ pension concept was federalized in Title IV (aid to dependent children) of the Social Security Act of 1935. This etched women’s dependency in national policy and bound that dependency to discretionary regulation of mother’s world. The Aid to Dependent Children program allowed the states to establish eligibility criteria, thus permitting continued regulation of women’s personal lives. Such regulation often turned on racial considerations, most notably in the South, where criteria requiring “ suitability” of the home and “propriety” of the parent allowed for discriminations in blacks’ access to public assistance 96 Other New Deal measures, too, prescribed and enforced gender roles. The Sheppard-Towner Act, defunct after 1929, was resurrected, revised, and expanded in the maternal and child health provision, Title V, of the Social Security Act. New Deal labor market policies used motherhood as their rationale for limiting women’s access to and protections in waged work. During the Depression, federal and local governments discharged married women: the federal government made the federally employed spouse of a federal employee a layoff priority, while twenty-six states legislated limitations on married women’s employment.97The National Recovery Act set a lower minimum wage for women

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than for men. The Wagner Act reached fewer women than men: many unions excluded women, while some unions introduced discriminatory caveats— sexbased job classifications and wage differentials, as well as proscriptions against married women’s employment— into their contracts.98 The Fair Labor Standards Act excluded whole occupational categories mostly inhabited by women from its protections— seasonal workers, retail clerks in businesses not engaged in interstate commerce, domestic workers. Meanwhile the New Deal Court— remarkably on the eve of the enactment of the first national, universal wages and hours policy— upheld a state women’s wage law on the grounds that “the protection of women is a legitimate end of the exercise of state power.” 99 New Deal income security policy also provided for women’s dependency when it granted unearned old-age security benefits to wives and widows of insured workers. It assumed women’s dependency when it treated women’s wages as supplemental in its formulae for family old-age benefits limits and in its stipulations for survivor’s benefits, and when it exempted major women’s occupations— domestic and cannery workers and educational, charitable, and hospital personnel— from work-based Social Security entitlements.100And it reproduced women’s dependency when it spelled out the funding formula for Aid to Dependent Children: mothers’ monthly entitlement was half that of other categorical recipients of public assistance. Women earn only 59 cents to the male dollar in the contemporary labor market; they received only 50 cents of the male dollar in women-centered assistance in the New Deal welfare state. Still, the “women first” strategy did bear fruit during the New Deal. A potentially genderless social insurance system was put in place with the enactment of old-age, unemployment, and accident insurance; however men’s incorporation into the welfare state did not gender-neutralize social provision. Nor did it ease the tension between race and republic. The work-based mobilization of ethnic men into industrial unions, the coming of age of a generation of ethnic children whose mothers had been the targets of matemalist reform, and the significance of ethnic voters in the new Democratic majority eased a reconciliation between immigrant ethnicity and citizenship. The antinomy between race and republic was thereafter refocused around issues of color, as it had been under slavery and during the first waves of Asian and Mexican immigration. New Deal social policies reflected this focus, either in the constituencies they served directly (e.g., unionized labor) or in the interests they placated through delegation (e.g., the South). The old-age insurance program of the Social Security Act of 1935 virtually excluded blacks and latinos, for it excluded agricultural and domestic workers from coverage and marginalized low-wage workers.101 Other provisions of the act— old-age assistance and aid to dependent children— handed implementation to the states, thereby opening the window of race-conscious discretion in determining eligibility and benefits levels. Moreover, men’s benefits were generally tied to wages (old-age insur-

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ance), military service (the GI Bill), and unionism (health insurance) rather than need. Historically less well paid, less fully employed, and less unionized than white men, minority men were disadvantaged in a system pegged to earnings, economic independence, and political membership rather than to need and equality. Far from socializing rights or universalizing benefits, the New Deal welfare state perpetuated gender and race distinctions among citizens by entrenching gender and race discriminations in entitlements. Women’s entitlements and women’s exclusions were tied to “mothers’ needs” and women’s economic dependence on men. Minority men’s entitlements and exclusions varied with their conformity to the work, war, union, and income experience of white men. While mothers could receive public aid for their dependent children, they were written out of policies that either assumed or required potential economic independence. The GI Bill, for example— the first national educational assistance policy— reached a potential 78 percent of the civilian male population over the age of seventeen after World War II; “Rosie the Riveter” had no comparable avenue to higher education and economic opportunity opened for her.102 While minority men were folded into the Social Security system and covered by New Deal labor policies if employed in covered occupations, they fell out of coverage disproportionately in comparison to white men because they could not meet occupational or minimum income eligibility criteria.103 Some discriminations have been corrected: New Deal labor policies have expanded their occupational coverage; the Civil Rights Act opened challenges to race- and gender-based employment discrimination; and in 1977 the woman wage earner secured for her family the same protections extended to the families of male wage earners under the Social Security Act.104 But many discriminations persist. Minority men’s claims on key contemporary social welfare programs are weaker than those of their white counterparts: “casual” or unstable work patterns are barriers to unemployment compensation, for example, and agricultural work is not protected by industrial health and safety provisions. Women’s claims are weakened by the masculine premises of many policies: in most states, unemployment insurance, for example, takes the male worker as the norm, thereby ignoring the ways in which motherhood and waged work coexist in many women’s lives. Many women are thus judged ineligible for a cushion against the loss of wages: some because they do not accumulate enough income to qualify as a result of low pay and part-time work; others because their loss of work is due to such practical realities as lack of child care during an assigned shift.105 So while more than ten million men received work- and service-linked benefits in 1983— unemployment compensation, veteran’s benefits, workers’ compensation— only a little over five million women received one or more of these benefits.106 The distinctive relationship between women and the state charted by

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women’s politics in early twentieth-century America yielded women’s distinctive position in the New Deal welfare state and minority men’s weak claim to social rights. The gender-biased social welfare innovations of the pre-New Deal period tackled problems of poverty through a focus on dependent motherhood and sought solutions to dilemmas of ethnic and racial diversity in the regulation of motherhood. The interweaving of race and gender during the process of the welfare state’s formation gendered citizenship, produced maternalist policies that benefited some women, opened the state to other women, and allowed the assimilation of “lesser races” into the system while assuring their continued subordination within it. It created a welfare state that tied the woman citizen to woman’s place and that institutionalized political ambivalence towards universal social citizenship. This skewed the politics of gender equality and willed race anxiety to another generation.

NOTES 1 I am using the term “race” as it figured in the politics of industrializing America. It refers to people of color and to white people we commonly refer to today as “ethnics.” The Teutonic origins theory developed in the late nineteenth century established a racial hierarchy that separated eastern, central, and southern Euro­ peans from northern and western (Teutonic) Europeans. Non-Teutonic Euro­ peans were, along with blacks, Chinese, Japanese, Mexicans, etc., considered to be inferior racial stock. 2 On the “hybrid republican vision” see Drew McCoy, The Elusive Republic: Politi­ cal Economy in Jeffersonian America (Chapel Hill: University of North Carolina Press, 1980); Isaac Kramnick, “The ‘Great National Discussion’: The Discourse of Politics in 1787,” William and Mary Quarterly 45 (January 1988): 3-32. On the masculinism of American citizenship, see Linda Keiber, Women of the Re­ public: Intellect and Ideology in Revolutionary America (Chapel Hill: University of North Carolina Press, 1980); Linda Kerber, “The Republican Ideology of the Revolutionary Generation,” American Quarterly 37 (Fall 1985): 474-95; Ruth Bloch, “The Gendered Meanings of Virtue in Revolutionary America,” Signs 13 (Autumn 1987): 37-58; Jan Lewis, “The Republican Wife: Virtue and Seduc­ tion in the Early Republic,” William and Mary Quarterly 44 (October 1987): 688-721. 3 Charles Francis Adams, quoted in Eric Foner, Free Soil, Free Labor, Free Men (New York: Oxford University Press, 1977), 228. 4 Jean H. Baker, Affairs of Party: The Political Culture of Northern Democrats in the Mid-Nineteenth Century (Ithaca: Cornell University Press, 1983), 84-85; Jean H. Baker, “From Belief into Culture: Republicanism in the Antebellum North,” American Quarterly 37 (Fall 1985): 532-50.

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5 Heywood Sanders, “Paying for the ‘Bloody Shirt’: The Politics of Civil War Pensions,” in Political Benefits, ed. Barry Rundquist (Lexington, Mass.: Lexing­ ton Books, 1980): 137-59; Richard Bensel, Sectionalism and American Political Development (Madison: University of Wisconsin Press, 1984), 60-73. 6 Linda Kerber, “ ‘May All Our Citizens Be Soldiers and All Our Soldiers Citi­ zens’: The Ambiguities of Female Citizenship in the New Nation,” in Arms at Rest: Peacemaking and Peacekeeping in American History, ed. Robert Beisner and Joan Challinor (New York: Greenwood Press, 1987). 7 On the Constitutional place of women see, among others, Linda Kerber, “From the Declaration of Independence to the Declaration of Sentiments: The Legal Status of Women in the Early Republic, 1776-1848,” Human Rights 6 (1976-77): 115-24. On judicial regulation of women’s citizenship, see Minor v. Happersett, 21 Wallace (1875); W. William Hodes, “Women and the Constitution: Some Legal History and a New Approach to the Nineteenth Amendment,” Rutgers Law Review 25 (Fall 1970): 26-53. Notwithstanding passage of the Nineteenth Amendment, women’s citizenship remained incomplete until only recently, when the Supreme Court, in Billy Taylor v. Louisiana 419 U.S. 522 (1975), declared women’s representation on juries essential to construction of a “fair cross-section of the community.” On women’s dependent nationality see Sophonisba Breckenridge, Marriage and the Civic Rights of Women: Separate Domicil and Indepen­ dent Citizenship (Chicago: University of Chicago Press, 1931), chaps. 2,4, and 5; Virginia Sapiro, “Women, Citizenship, and Nationality: Immigration and Natu­ ralization Policies in the United States,” Politics and Society 13 (1984): 1-26. Married women’s citizenship was not made fully independent until the revised Cable Act of 1931. 8 Nancy Cott, The Bonds of Womanhood: “Women’s Sphere " in New England, 1780-1835 (New Haven: Yale University Press, 1977), 64-70; Ruth Bloch, “American Feminine Ideals in Transition: The Rise of the Moral Mother, 17851815,” Feminist Studies 4 (June 1978): 101-26. 9 Gerda Lemer, “The Lady and the Mill Girl: Changes in the Status of Women in the Age of Jackson,” in The Majority Finds Its Past: Placing Women in History, ed. Gerda Lemer (New York: Oxford University Press, 1979), 15-30. For a con­ temporary response to popular opposition to women’s movement into industry, see Elisha Bartlett, M.D., A Vindication of the Character and Condition of the Females Employed in the Lowell Mills, Against the Charges Contained in the Bos­ ton Times, and the Boston Quarterly Review (Lowell: L. Huntness Printer, 1841), esp. 15-21. 10 Norma Basch, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth Century New York (Ithaca: Cornell University Press, 1982); Norma Basch, “Equity vs. Equality: Emerging Concepts of Womens’ Political Status in the Age of Jackson,” Journal of the Early Republic 3 (Fall 1983): 297-318; Wendy W. Williams, “The Equality Crisis: Some Reflection on Culture, Courts, and Feminism,” Women’s Rights Law Reporter 1 (Spring 1982): 176-78; Joan Hoff-Wilson, “The Legal Status of Women in the Late Nineteenth and Early Twentieth Centuries,” Human Rights 6 (1976-77): 125-34.

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11 In Bradwell v. Illinois, 16 (Wallace 130), 1873 the Supreme Court declared women incompetent to contract, reasoning that: The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. . .. [The] divine ordinance as well as . . . the nature of things indicated the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong or should belong to the family institution, is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband . . . a married woman is incapable, without her husband’s consent, of making contracts which shall be binding on her or him.

12 13 14

15 16 17 18 19

Thirty-five years later the court reiterated its view, this time substituting the state for the husband as the arbiter of woman’s contract right. Muller v. Oregon, 208 U.S. 412 (1908). Kramnick, “The ‘Great National Discussion’,” 16-23. Edmund S. Morgan, American Slavery, American Freedom: The Ordeal of Colo­ nial Virginia (New York: Norton, 1975), 384. Sean Wilentz, Chants Democratic: New York City and the Rise of the American Working Class, 1788-1850 (New York: Oxford University Press, 1984); Sean Wilentz, “Against Exceptionalism: Class Consciousness and the American Labor Movement,” International Labor and Working Class History 26 (Fall 1984): 1-24. Gordon Wood, Creation of the American Republic 1776-1787 (Chapel Hill: Uni­ versity of North Carolina Press, 1969), 47-53. Robert E. Shalhope, “Republicanism and Early American Historiography,” Wil­ liam and Mary Quarterly 39 (April 1982): 341. “Letters of Agrippa,” in The Complete Anti-Federalist 4, ed. Herbert Storing (Chicago: University of Chicago Press, 1981), 86. Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth Century America (Chapel Hill: University of North Carolina Press, 1985), 10339. Ibid., 148. For the most part the legal order supported this view. Oliver Wendell Holmes’ reasoning in Buck v. Bell 24 U.S. 200 (1927) was symptomatic: We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices . . . in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. . . . Three generations of imbeciles are enough.

20 Congressional Record (June 19, 1884), 5349-52. 21 The cultural and rhetorical symptoms of these views are described by Alexan­ der Saxton, “Blackface Minstrelsy and Jacksonian Ideology,” American Quar­

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22 23 24 25

26 27 28 29 30 31

32 33 34

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terly 27 (March 1975): 3-28; Thomas Gossett, Race: The History of an Idea in America (New York: Schocken Books, 1965). Francis Walker, “The Restriction of Immigration,” North American Review (June 1896): 828; Woodrow Wilson, “Make Haste Slowly,” Selected Literary Papers (1925): 30-39; and History of the American People 5 (1902), 212-13 are two contemporary presentations of these views. By “old-stock” I am referring chiefly to the English, Welsh, Scots, Irish, and Germans. By artifice of late nineteenth-century scientific racialism, these groups were assigned the inherent democratic character of Teutonic peoples. E.L. Godkin, quoted in Thomas Gossett, Race: The History of an Idea in America (1965), 268. California State Senate, Chinese Immigration: Its Social, Moral and Political Effect (1878); Congressional Record (February 13, 1885), 1634. On the contest between racial identity and universal political identity, see Eric Foner, Politics and Ideology in the Age of the Civil War (New York: Oxford University Press, 1980), chaps. 4, 5, and 6 ; Alexander Saxton, The Indispens­ able Enemy: Labor and the Anti-Chinese Movement in California (Berkeley: University of California Press, 1971), chap. 2. On the politics of racial exclu­ sion, see Saxton, The Indispensible Enemy’, Gwendolyn Mink, Old Labor and New Immigrants in American Political Development: Union, Party, and State, 1875-1920 (Ithaca: Cornell University Press, 1986); George Frederickson, White Supremacy: A Comparative Study in American and South African History (New York: Oxford University Press, 1981); Richard Kluger, Simple Justice (New York: Vintage, 1977), chaps. 1-4. For example, Yick Wo v. Hopkins, 118 U.S. 356 (1886); Plessy v. Ferguson, 163 U.S. 537 (1896); Cumming v. Richmond County Board of Education, 175 U.S. 528 (1899). Linda Kerber, “The Republican Mother: Women and the Enlightenment: An American Perspective,” American Quarterly 28 (Summer 1976): 187-205. Reverend William Lyman, A Virtuous Woman in the Bond of Domestic Union (New London, 1802), 22. Basch, In the Eyes of the Law; Grossberg, Governing the Hearth, chap. 7. Green v. State, 58 Ala. 190 (1877), quoted in Grossberg, Governing the Hearth. The ideology of republican motherhood and the canons of domesticity legiti­ mized women’s civic activity—especially for moral reform—throughout most of the nineteenth century. Cott, The Bonds of Womanhood', Caroll Smith-Rosenberg, “Beauty, the Beast, and the Militant Woman: A Case Study in Sex Roles and Social Stress in Jacksonian America,” American Quarterly 23 (1971): 562-84; Nancy Hewitt, Women’s Activism and Social Change: Rochester, New York, 18221872 (Ithaca: Cornell University Press, 1984). Barbara Ehrenreich and Deirdre English, “The Manufacture of Housework,” Socialist Revolution, vol. 26 (1975): 12, 25. Rheta Childe Dorr, What Eight Million Women Want (Boston: Small, Maynard and Company, 1910), 327, 330. Ibid., 321-324.

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35 Florence Kelley, Modem Industry in Relation to the Family, Health, Education, Morality (New York: Longmans, Green, and Co., 1914), 95-96. 36 Ibid., 52; Women’s Bureau, Bulletin no. 23, The Family Status of Breadwinning Women (Washington, D.C., 1922), 42. 37 Mary Poovey, The Proper Lady and the Woman Writer: Ideology as Style in the Works of Mary Wollstonecraft, Mary Shelley, and Jane Austen (Chicago: Univer­ sity of Chicago Press, 1984); Sally Alexander, “Women, Class and Sexual Differ­ ence,” History Workshop Journal 17 (Spring 1984): 125-49; Dorothy Thompson, The Chartists: Popular Politics in the Industrial Revolution (New York: Pantheon, 1984), chap. 6; Joan W. Scott, “On Language, Gender, and Working-Class His­ tory,” International Labor and Working-Class History 31 (Spring 1987): 1-14; Ann Taylor Allen, “Mothers of the New Generation: Adele Schreiber, Helene Stocker, and the Evolution of a German Idea of Motherhood, 1900-1914,” Signs 10 (Spring 1985): 412-38; Richard Evans, Comrades and Sisters: Femi­ nism, Socialism and Pacifism in Europe, 1870-1945 (New York: St. Martin’s Press, 1987), 21-25, 55-57; Jane Jenson, “Struggling for Identity: The Women’s Movement and the State in Western Europe,” West European Politics 8 (October 1985): 5-18. 38 Mary Lyndon Shanley, “Suffrage, Protective Labor Legislation, and Married Women’s Property Laws in England,” Signs 12 (Autumn 1986): 62-77; Bent­ ley Gilbert, The Evolution of National Insurance in Britain (1966), 331; Jane Jenson, “Both Friend and Foe: Women and State Welfare,” in Becoming Visible, ed. Bridenthal and Koonz (Boston: Houghton Mifflin, 1987), 535-56; Elizabeth Wilson, Women and the Welfare State (1977), especially chap. 6. 39 Leonard Krieger, “The Idea of the Welfare State in Europe and the United States,” Journal of the History of Ideas 24 (December 1963): 553-68; Peter Flora and Jens Alber, “Modernization, Democratization, and the Development of Wel­ fare States in Western Europe,” in The Development of Welfare States in Europe and America, ed. Peter Flora and Arnold J. Heidenheimer (New Brunswick: Transaction Books, 1981), 37-81; Mary Ruggie, The State and Working Women: A Comparative Study of Britain and Sweden (Princeton: Princeton University Press, 1984). 40 To be sure, some class-premised policies for social provision did win a hear­ ing in the United States. Theodore Roosevelt, for example, raised the issue of health insurance in the 1912 presidential contest, the Progressive Party included a health plank on its platform, and in 1916 Congress considered health provi­ sion along with other proposals for social insurance. But business ambivalence toward socializing risks other than those already borne in tort liability (work­ men’s compensation), union labor interest in providing for its own constituency, and middle-class concern about the use of public benefits for patronage purposes (e.g., Civil War pensions and outdoor relief) generated powerful resistance to social provision. Daniel Nelson, Unemployment Insurance: The American Ex­ perience (Madison: University of Wisconsin Press, 1969), chaps. 2 and 3; Roy Lubove, The Struggle for Social Security (Pittsburgh: University of Pittsburgh Press, 1986); Jill Quadagno, The Transformation of Old Age Security (Chicago:

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41 42 43 44 45 46 47 48 49

50

51 52 53 54 55

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University of Chicago Press, 1988); Mink, Old Labor and New Immigrants’, Sanders, “Paying for the ‘Bloody Shirt’;” Bensel, Sectionalism; John Gillin, Poverty and Dependency (New York: The Century Company, 1921), 153. See, for example, Samuel Gompers in the American Federationist 22 (1915), 113. On voluntarism, see Michael Rogin, “Voluntarism: The Political Functions of an Anti-Political Doctrine,” Industrial and Labor Relations Review 15 (1962): 521-35; Mink, Old Labor and New Immigrants, chaps. 1,5, and 7. Samuel Gompers in the American Federationist 22 (1915), 113. H.L. Wayland, Baltimore Charities Conference (1887), 18. Joseph K. Hart, “Public Welfare and Our Democratic Institutions,” American Academy of Political and Social Science Annals 105 (January 1923): 34. Denise Riley makes a similar point about postwar British social policy in War in the Nursery (London: Virago, 1983), 194-95. Beatrice Forbes-Robertson Hale, What Women Want: An Interpretation of the Feminist Movement (New York: Frederick A. Stokes, 1914), 180. Ibid., 288-90. Mary Ritter Beard, Woman’s Work in Municipalities (New York: D. Appleton and Co., 1915); Judith Sealander, As Minority Becomes Majority: Federal Reaction to the Phenomenon of Women in the Work Force (Westport, Conn.: Greenwopd Press, 1983). The role of both women’s politics and gender bias in building the American welfare state has been gaining in recognition: Stanley Lemons, The Woman Citizen: Social Feminism in the 1920s (Urbana: University of Illinois Press, 1973); Virginia Sapiro, “The Gender Basis of American Social Policy,” in this volume; Sylvia Law, “Women, Work, Welfare, and the Preservation of Patri­ archy,” University of Pennsylvania Law Review 131 (May 1983): 1249-1339; Barbara J. Nelson, “The Origins of the Two-Channel Welfare State,” in this volume, Kathryn Kish Sklar, “A Theoretical Framework for the Comparative Study of Women and Politics in the United States and Great Britain,” paper pre­ sented at the Berkshire Women’s History Conference, 1987; Barbara Ehrenreich and Frances Fox Piven, “Women and the Welfare State,” in Alternatives ed. Irving Howe (New York: Longman, 1983) 41-60; Irene Diamond, ed., Women, Families and Public Policy (New York: Pantheon, 1984). Florence Kelley, “Should Women be Treated Identically with Men by the Law?” American Review 3 (May-June 1923): 277. Ellen DuBois, Feminism and Suffrage (Ithaca: Cornell University Press, 1978), chaps. 2 and 6 . Quoted in Paula Giddings, When and Where I Enter (New York: W. Morrow, 1984), 67. Ibid., 66 . My italics. Aileen Kraditor, Ideas of the Woman Suffrage Movement (New York: Norton, 1965, 1981). Kraditor relates race appeals to the development of the suffragists’ “expendiency” argument, wherein woman suffrage was urged as a means to reform rather than as a reform in itself. Ibid., 138.

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57 Jane Addams, A Centennial Reader (New York: Macmillan, 1960), 11, 16. 58 Jane Addams, Twenty Years at Hull House (New York: New American Library, 1960), 253. 59 Annie Marion MacLean, Wage-Earning Women (New York: Macmillan, 1910, 1974), 177. 60 Herman Hagedom, ed., The Works of Theodore Roosevelt (1926-27), 18:402, 10:248; Theodore Roosevelt, Winning of the West (1917), 89. 61 James Richardson, ed., Messages and Papers of the Presidents 14 (New York: Bureau of National Literature, 1911), 6651-52. 62 Rheta Childe Dorr, quoted in “What Next?” The Suffragist (October 1920): 234. 63 Florence Kelley, “The Need of Theoretical Preparation for Philanthropic Work” (1887), quoted in Sheila Rothman, Woman’s Proper Place (New York: Basic Books, 1978), 111-12. See also Jane Addams, “Why the Ward Boss Rules,” Outlook 51 (April 18, 1892). 64 Louise de Koven Bowen, “The Colored People of Chicago: Where Their Oppor­ tunity Is Choked—Where Open,” The Survey, reprinted in Beard, Woman’s Work, 184. 65 A.E. Sheffield, “Administration of the Mothers’ Aid Law in Massachusetts,” Survey 31 (February 21,1914): 644-45. Florence Kelley argued to the New York State Factory Investigation Commission that “a man ought to be held up by the community rigidly to his duty in supporting his wife and children.” Preliminary Report 3 (1912), 1599. 66 Allen F. Davis, Spearheads of Reform: The Social Settlements and the Progressive Movement (New York: Oxford University Press, 1967). 67 Florence Kelley, Modern Industry, 97. 68 Quoted in Ehrenreich and English, “The Manufacture of Housework,” 32. 69 Josephine Goldmark, Fatigue and Efficiency (New York: Charities Publication Committee, 1912). 70 Hale, What Women Want, 181. 71 Martha May, “Bread Before Roses: American Workingmen, Labor Unions and the Family Wage,” in Women, Work and Protest: A Century of U.S. Women’s Labor History, ed. Ruth Milkman (Boston: Routledge, Kegan Paul, 1985) 1-21; Florence Kelley, Modern Industry, 13, 32. 72 Florence Kelley, Modern Industry, 36. 73 Jane Addams, “Why Women Should Vote,” Ladies Home Journal (January 1910). 74 Jane Addams, “Utilization of Women in City Government,” in Newer Ideals of Peace (New York: Macmillan, 1907). 75 Jane Addams, “If Men Were Seeking the Franchise,” reprinted in Addams, A Centennial Reader, 113. 76 Jane Addams, “Why Women Should Vote.” 77 Jane Addams, “Utilization of Women in City Government.” 78 Bradwell v. Illinois, 16 Wallace 130 (1873). 79 Muller v. Oregon; Sophonisba Breckenridge, “Legislative Control of Women’s Work,” Journal of Political Economy (February 1906), 107-9. 80 The court in Muller v. Oregon established the principle that legislation setting

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81 82 83 84 85 86

87 88

89 90 91

92 93 94 95

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the terms of women’s labor contract is “for the benefit of all” and thus held such legislation to be within the scope of the police power. Three years earlier, in Lochner v. New York, 198 U.S. 45 (1905), the court applied more rigid scrutiny to legislation establishing maximum hours for bakers (a category including men), holding that the health of bakers was not a matter of the general welfare. While the Court found hours regulations for women in general to be appropriate, it found hours regulation for men Constitutional in rare occupational circumstances —when male workers were found to be unequal parties in the labor relations of hazardous industries (i.e., underground mining). Holden v. Hardy, 169 U.S. 366 (1898). Lucinda Chandler quoted in William Leach, True Love and Perfect Union (New York: Basic Books, 1980), 89. Sophonisba Breckenridge, Women in the Twentieth Century: A Study of their Political, Social and Economic Activities (New York, 1933), 264. Mark Leff, “Consensus for Reform: The Mothers’ Pension Movement in the Progressive Era,” Social Service Review 47 (1973): 397-417. Mrs. Theodore Bimey, quoted in Rothman, Womans Proper Place, 104. Florence Kelley, Modern Industry, 16. Gillin, Poverty and Dependency, 377. Michael B. Katz. In the Shadow of the Poorhouse (New York: Basic Books, 1986), 129. William Hard, “The Moral Necessity of ‘State Funds to Mothers’,” Survey 29 (March 1, 1913): 769-73. “The Needy Mother and the Neglected Child,” Outlook 104 (June 7, 1913): 280-83. “Standardizing Service,” Equal Rights (July 14, 1923): 172. Pension rates varied among states; they averaged from nine to fifteen dollars per month for the first child, and from four to ten dollars per month for additional children. Pensions were allocated for children up to fourteen to sixteen years of age. U.S. Department of Labor, Children’s Bureau, Laws Relating to “Mother’s Pensions’' in the United States, Denmark, and New Zealand (Washington, D.C., 1914). Only 3 percent of mothers’ assistance went to black mothers. See Leff, “Con­ sensus for Reform” 414. Leff, “Consensus for Reform,” 412-14. C.C. Carstens, “Social Security Through Aid for Dependent Children in Their Own Homes,” Law and Contemporary Problems (April 1936): 246-52. According to Andre Siegfried, while 51 percent of the South Carolina population was black, blacks only received 11 percent of public education monies. See also, Gavin Wright, Old South, New South (1985), 123; Robert A. Margo, Disfran­ chisement, School Finance, and the Economics of Segregated Schools in the U.S. South, 1890-1910 (N.p., 1982). Gunnar Myrdal, An American Dilemma: The Negro Problem and Modern Democ­ racy, vol. 1 (New York: Harper & Row, 1962), chap. 15; Jill Quadagno, The Transformation of Old Age Security, 135. Nancy Folbre, “The Pauperization of Motherhood: Patriarchy and Public Policy

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in the United States,” in Families and Work, eds. Naomi Gerstel and Harriet Engel Gross (Philadelphia: Temple University Press, 1987), 499. Lois Scharf, To Work and to Wed: Female Employment, Feminism, and the Great Depression (Westport, Conn.: Greenwood Press, 1980), 130-31. West Coast Hotel v. Parrish, 300 U.S. 379 (1937). On specific measures, see Robert B. Stevens, Statutory History of the United States: Income Security (New York: Chelsea House, 1970), 117-19, 140-44. The benefits of insured wives, but not of insured husbands, were subject to re­ duction if combined benefits exceeded family benefit limits. Survivor’s benefits were established for widows and their children; men’s exclusion required judicial correction in the 1970s. See Myrdal, An American Dilemma, chap. 15, fn. 65. Veterans Administration, Annual Report, 1984: America is #7 Thanks To Our Veterans (Washington, D.C., 1984), 3. For example, in 1935, 42 percent of black workers in occupations “covered” by social insurance earned incomes below the floor for eligibility established in the Social Security Act of the same year. Twenty-two percent of the white worker population in covered occupations earned incomes below the old-age insurance limit. See Wayne Caskey, “Workers with Annual Taxable Wages of Less than $200 in 1937-39,” Social Security Bulletin (October 1931): 17-24. Califano v. Goldfarb, 97 S.Ct. 1021 (1977). Diana Pearce, “Toil and Trouble: Women Workers and Unemployment Compen­ sation,” Signs 3 (Spring 1985): 439-59. Joan Acker, “Class, Gender, and the Relations of Distribution,” Signs 13 (Spring 1988): 492.

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MULLER V. OREGON RECONSIDERED: The Origins of a Sex-Based Doctrine of Liberty of Contract by Nancy S. Erickson

In 1905 in Lochner v. New York the U.S. Supreme Court voided a law setting 10 hours as the maximum work day for bakers (who were assumed to be male) on the ground that it violated the con­ stitutional right of both employee and employer under the 14th Amendment to contract concerning hours of Labor.1 In 1908 in Muller v. Oregon the same Court unanimously upheld a 10 hour law for women workers in factories and laundries.2 Students of law and history who read Lochner and Muller traditionally ask how such a major inroad into liberty of contract was accomplished in a mere three years, with only one change on the court. A more fruitful inquiry may be whether Muller was in fact a major inroad. Commentators often attribute Muller's outcome to the famous “Brandeis brief’ submitted in that case —a “copious” compila­ tion of “scientific” authorities that were intended to show the court that overwork damaged the employee’s health and that the differ­ ences between women and men place women in special need of hours laws.3 The Brandeis brief is supposed to have persuaded Research for this paper was funded in part by The Ohio State University College of Law Schwartz Family Fund. Many thanks are due to Waneta Buddelmeyer, OSU College of Law class of 1985, for her untiring efforts to assist with the research for this work. With minor changes, the text of this article is taken from a paper presented at the American Society for Legal History Annual Meeting in Baltimore. 1Lochner v. New York, 198 U.S. 45 (1905). 2 Muller v. Oregon, 208 U.S. 412 (1908). 3The Supreme Court characterized the Brandeis brief as containing a “copious collection” of legislation governing women’s work hours and other materials on the subject (208 U.S. at 419). Writers who attribute Muller’s outcome to the Brandeis brief include, for example, J. Baer, The Chains of Protection (N.Y., 1979), 51, 66; R. Bruce, “The Illinois Ten-Hour Labor Law for Women,” Michigan Law Review, 81 (1909), 20; F. Frankfurter, “Hours of

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the Court in two ways; it brought the “real world” into the court­ room for the first time via a brief that contained scientific and sociological materials rather than just dry legal precedent and the brief convinced the Court that the differences between men and women would justify a difference in legal treatment. In this view, the influence of the Brandeis brief was crucial to the out­ come of Mullen without the brief, “protective” labor legislation for women, for which Florence Kelley and others had fought so hard, would have been voided by the Court. It seems to me that the Court would have had no difficulty going from Lochner to Muller even without the Brandeis brief. The liberty of contract doctrine had been sex-based since its in­ ception, and by 1908 there was abundant precedent upon which to uphold women-only hours laws. Without the benefit of a Brandeis brief, and often in the face of weighty liberty of con­ tract precedents in their own states, the high courts of five states had upheld hours legislation for women before Muller. Mas­ sachusetts in 1876,4 Pennsylvania in 1900,5 Nebraska and Washington in 1902,6 and Oregon itself in 1906.7 Only the high court of Illinois—in the famous Ritchie case—invalidated a women-only hours law on the freedom of contract doctrine.8 Moreover, Brandeis-type briefs had been presented to courts be­ fore, so the technique was not new (although the sheer volume of non-legal authorities was unprecedented): mini-Brandeis briefs had been used by both sides in the Ritchie case and in Lochner itself.9 It should not be surprising to discover that the liberty of con­ tract doctrine was always one that pertained exclusively to adult males. The view that women, especially married women, needed the special protection of the state was certainly no stranger to the common law. However, the rationales for that paternalism changed over time. The original common law view of women Labor and Realism in Constitutional Law,” Harvard Law Review, 29 (1916); 353, 364-65; C. Jacobs, Law Writers and the Courts (N.Y., 1954), 94; H. Wilcox, “The Need of Social Statistics as an Aid to the Courts,” American Law Review, 47 (1913), 270. 4 Commonwealth v. Hamilton Mfg. Company, 120 Mass. 383 (1876). Commonwealth v. Beatty, 15 Pa. Super. 5 (1900). 6Wenham v. State, 65 Neb. 394 (1902); State v. Buchanan, 29 Wash. 602 (1902). 7State v. Muller, 48 Ore. 252 (1906). 8Ritchie v. People, 155 111. 98 (1895). 9See text accompanying notes 65-66 and 93-94 infra.

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classed them with children and sometimes mental incompetents, all of whom needed the special protection of the state because they were supposedly unable to fully care for themselves.10In the late 19th century cases and treatises there was a transition to a different rationale: the biological differences between the sexes, particularly the need to protect the health of women as childbearers.11What is fascinating about Muller and some of the state court cases is that, instead of leaving the old rationales behind, the courts simply added new to old, resulting in a hodge-podge. Bradwell and the Slaughter-House Cases Prior to the first case that considered the constitutionality of hours restrictions for adult women—the 1876 Massachusetts case of Commonwealth v. Hamilton Mfg. Co.12—the nascent lib­ erty of contract doctrine was already sex-based. Confirmation of this can be found in a comparison between the famous 1873 Slaughter-House Cases13 and Bradwell v. Illinois,14 a case that came down from the Supreme Court the very next day. The earliest opinions under the 14th Amendment that are com­ monly considered forerunners of the Supreme Court’s liberty of contract cases are the dissenting opinions of Justices Bradley and Field in the Slaughter-House Cases, and these opinions are to be found in every modern constitutional law casebook. Their counterpart in the area of women’s rights to freedom of contract, Bradwell v. Illinois, is rarely even mentioned in such casebooks. Yet it is important to look at the two cases together. The Slaughter-House Cases arose from an 1869 Louisiana statute creating the Crescent City Live-Stock Landing and Slaughter-House Company and giving it a 25 year monopoly. The company was to build slaughterhouses in specified areas, where their effluage would not harm the public water supply, and was to charge specified fees to customers who wished to slaughter animals on their premises. Myriad lawsuits ensued, many brought 10For an example of the classification of married women with infants and imbeciles, see note 30 infra. For further information on Myra Bradwell, see N. Gilliam, “A Professional Pi­ oneer: Myra Bradwells Fight to Practice Law,” Law & History Review, 5 (1987), 105. "See especially text accompanying notes 62-64 and 78 infra. 12120 Mass. 383 (1876). 1383 U.S. (16 Wall.) 36 (1873). 1483 U.S. (16 Wall.) 130 (1873).

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by butchers who were not members of the Company, who argued that the law deprived them of all three 14th amendment guarantees: the privileges and immunities of U.S. citizenship, equal protection, and due process. After the statute was upheld in the Louisiana Supreme Court, the independent butchers sought a writ of error to the U.S. Supreme Court. On January 11, 1872, the renowned attorney Matthew Hale Carpenter argued to the Court that the statute should be upheld.15 Seven days later, Carpenter argued the Bradwell case before the Supreme Court.16 Myra Bradwell was the publisher of the Chicago Legal News, which became the most important legal pub­ lication in the midwest and west.17 After clerking with her at­ torney husband, she applied for admission to the Illinois bar. Under the Illinois statute, any adult “person” of good character, with the requisite training, could be admitted to the bar. Her ap­ plication was denied, however, on two grounds. First, as a mar­ ried woman she would not be bound by her contracts with her clients. Second, the legislature could not possibly have intended that women be admitted to the bar: “female attorneys at law were unknown in England,” from whence Illinois took its common law, the movement for women’s suffrage had not yet arisen when the Illinois statute was passed, and “[t]hat God designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply, and execute the laws, was regarded as an almost axiomatic truth.”18 Bradwell then took her claim to the U.S. Su­ preme Court, where Matthew Carpenter argued for her that ad­ mission to the bar was a “privilege or immunity” protected against state infringement by the 14th Amendment, and that therefore admission could not be denied to women who had the requisite qualifications.19 The decisions in both cases were handed down in April, 1873: the butchers’ monopoly won and Bradwell lost. The majority opinion in the Slaughter-House Cases reduced the privileges and immunities clause of the 14th Amendment to a virtual nullity. 15The history of the Slaughter-House Cases is taken from C. Fairman, History of the Supreme Court of the United States, Vol. 6 “Reconstruction and Reunion, 1864-88” (N.Y.; 1971), 1320-74. 16Fairman,1364, note 15 discusses the chronological and legal interconnections between the Slaughter-House Cases and Bradwell. 17B. Babcock, A. Friedman, E. Norton, S. Ross, Sex Discrimination in the Law (N.Y., 1975), 5. 1883 U.S. at 132, quoting from the Illinois opinion. 19Argument for the Plaintiff in Error, Bradwell v. Illinois, 83 U.S. 130, 135-36 (1873). 199

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If the privilege to engage in any chosen profession existed, the majority held, it was not protected by the 14th Amendment.20 The majority in Bradwell agreed, thus denying her admission to the bar.21 It is in the dissenting and concurring opinions that we see the precursors of Lochner and Muller. Justices Field, Bradley, Swayne, and Chase dissented in the Slaughter-House Cases, the first three in separate written opinions.22All three opinions viewed the right to pursue a lawful employment as protected under some clause of the 14th Amendment. Thus, one would expect those four justices to dissent in Bradwell. However, only Chase dissented in that case, and he did so without writing an opinion.23The other three concurred with the majority in denying her admission to the bar, but on different grounds than the majority, with Justice Bradley writing the opinion. In it he differentiated between the privileges and immunities of men and those of women, finding justification in “the civil law,” “nature,” and “the law of the cre­ ator.” His now infamous opinion concluded: [I]n view of the peculiar characteristics, destiny, and mission of woman, it is within the province of the legislature to ordain what offices, position, and callings shall be filled and discharged by men, and shall receive the benefit of those energies and responsibilities, and that decision and firmness which are presumed to predominate in the sterner sex.24

Thus, three of the dissenters in the Slaughter-House Cases viewed the right to pursue a chosen employment as a right re­ stricted to adult males. Since the Slaughter-House dissents even­ tually evolved into the liberty of contract doctrine, which gained the adherence of the majority of the Supreme Court within 20 years, the doctrine was clearly sex-based at its inception. Influence of Thomas Cooley Except in the state of Illinois, the liberty of contract doctrine remained sex-based. The works of the well-known treatise writer 20Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873) 21Bradwell v. Illinois, 83 U.S. (16 Wall) 130 (1873). 22Chief Justice Chase did not write his own opinion; however he concurred in Justice Field’s dissent, along with Justices Swayne and Bradley (83 U.S. at 111). 2383 U.S. 142. Justice Chase died within a few months, and there is no surviving evidence of his views on the case (Fairman, 1474). 2483 U.S. 142 (Bradley, J., concurring). 200

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Thomas M. Cooley were influential in this regard—especially his treatise entitled Constitutional Limitations, which went through four editions in 10 years.25 Even in the first edition (1868) there were clear signs that the liberty of contract doctrine would prob­ ably be sex-based. In the fourth edition (1878) there were further indications, and in the fifth edition (1883) the sex-based nature of the doctrine was explicit.26Unlike Christopher Tiedeman’s 1886 treatise on the same topic, to be discussed later,27 Cooley’s trea­ tise never even implied that the liberty of contract doctrine should apply with any force to the employment of women. Cooley’s Chapter XI, entitled “Of the Protection of Property by the ‘Law of the Land,’ (another phrase for “due process”),” contains the following oft-cited passage: Laws. . . may extend to all the citizens or be confined to particular classes, as minors, or married women, bankers, or traders, and the like.28

Later in the same chapter Cooley wrote: The doubt might also arise whether a regulation made for any one class of citizens, entirely arbitrary in its character, and restricting their rights, privileges, or legal capacities in a manner before unknown to the law, should be sustained, notwithstanding its generality. Distinctions in these respects should be based upon reason which renders them important, — like the want o f capacity in infants, and insane persons. . . .29

It is clear from other sections of his treatise that Cooley would view differential treatment of women, like that of infants and insane person, as “based on some reason which renders them im­ portant.” Cooley accepted the common law rules restricting mar­ ried women’s “liberty” and denying women the right to vote.30 25T. Cooley, The Constitutional Limitations Which Rest Upon the Legislative Power of the States of the Union (Boston, 1st ed. 1868; 2nd ed. 1871; 3d ed. 1874; 4th ed. 1878). 26The sections concerning women were relatively unchanged in the first three editions. The fifth edition is discussed in the text accompanying note 80 infra. 27See text accompanying note 61 infra. 28Cooley (1st ed.) 390 (emphasis added). 29Ibid.y 393 (emphasis added). 30Ibid., 29 (emphasis added): Certain classes have been almost universally excluded,—the slave, because he is wanting alike in the intelligence and the freedom of will essential to the proper exercise of the right; the woman from mixed motives, but mainly, perhaps, because, in the natural relation of marriage, she was supposed to be, and under the common law actually was, in a condition of dependence upon and subjection to the husband; the infant, for reasons similar to those which exclude the slave; the idiot, the lunatic, and the felon, on obvious grounds; and sometimes other classes for whose exclusion it is difficult to assign reasons so generally satisfactory. The theory in these cases we take to be that classes are excluded

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He viewed the differences between men and women as sufficient justification for disparate treatment under the law, although he was not specific about what those differences were—vague refer­ ences to “dependence” and “subjection” of women were suffi­ cient, without detailing women’s physical differences, as later writers did.31 If proponents of “liberty of contract” relied on Cooley—and they did—their own explication of the doctrine would likely be sex-based as well. Massachusetts: the First Constitutional Challenge Fails The first constitutional challenge to a maximum hours law for women was Commonwealth v. Hamilton Mfg. Co., an 1876 Massachusetts case.32 In 1842, Massachusetts started limiting the working hours of children.33 In 1847 women were added to the statutes restricting children’s hours to 10 per day.34 Adult males’ work hours were never restricted in private employment during the period under consideration here, that is, up to Muller in 1908.35 The first important question is why women’s hours were restricted and men’s were not. There does not appear to be a clear answer to this question. From at least 1830, the goal of the proponents of hours legislation had always been to cover all workers, not just women.36 Yet the legislation as passed covered only women and because they lack either the intelligence, the virtue, or the freedom of action essential to the proper exercise of the elective franchise. See also Chapter XVIII, repeating some of the same. Of husband and wife, he writes: The husband, at the common law, is recognized as having legal custody of, and power of control over, the wife, with the right to direct as to her labor, and insist upon its perfor­ mance. The precise nature of the restraints which may be imposed by the husband upon the wife’s actions, it is not easy, from the nature of the case, to point out and define; but they can only be such gentle restraints on her liberty as her improper conduct may seem to require. . . .(339) 31Ibid., 339. For later writers who detailed women’s physical differences, see text accompanying notes 61-63 infra. 32Commonwealth v. Hamilton Mfg. Co., 120 Mass. 383 (1876). 331842 Mass. Acts. ch. 60 (children under 10 prohibited from working more than 10 hours per day in manufacturing establishments). 341847 Mass. Acts. ch. 221 (minors under 18 and women prohibited from working in manufac­ turing establishments more than 10 hours per day, 60 per week). 35The one exception to this statement is that the working hours of employees on railroads and similar public transportation carriers were restricted (1893 Mass. Acts ch. 386; 1894 Mass. Acts ch. 508 § 9). However, these restrictions were intended to benefit not the workers them­ selves but the health and safety of the passengers (Jacobs, 79). 36The Workingman’s Party, which had as one of its goals shorter hours of labor for all workers, had branches in Boston as early as 1830 (S. Kingsbury, ed., C. Persons, M. Parton, and M. Moses, Labor Laws and Their Enforcement. (Boston, 1911), 10-11.

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children. It has been suggested that the proponents ultimately took the “petticoat” route; that is, seeing that legislation for women only would be easier to get passed, they compromised, knowing that the practical result would be limits on men’s hours.37 In the factories the work of men and women was usually related, so that if the women (who were generally half of the workers) stopped working, the employer would have to shut down the whole fac­ tory. This approach had been successfully taken in England.38 A lawsuit challenging the constitutionality of the Mas­ sachusetts statute was immediately commenced by the Hamilton Manufacturing Company, one of the Lowell mills. The statute was upheld by the Massachusetts Supreme Court in 1876.39 This first judicial approval of women-only hours laws is remarkable for three reasons. First, the opinion did not make anything of the fact that the statute pertained only to women; it consistently referred to the employee as “person.” Second, the court did not view the law as a restriction on the number of hours an employee could work, but merely a prohibition on the worker being em­ ployed by the same employer more than 10 hours per day, im­ plying that she could moonlight for more hours of work.40 Fi­ nally, the court gave no credence to laissez-faire arguments, stating that there was no doubt but that the law could be upheld either as a health or police regulation; citations to caselaw were thus unnecessary.41 It is unfortunate that the court felt no need to give citations to the decisions it refers to, because there is no way of knowing what they might be. The briefs might be helpful, but they are not available.42 Obviously a freedom of contract argument was presented to the court, but the strength of that argument and the forcefulness of any counter-argument are not known. It is ironic 37J. Commons, History o f Labour in the United States, Vol. 3, E. Brandeis, “Labor Legislation” (N.Y., 1935), 462. 38M. Shanley, “Feminism, Marriage, and the Law in Victorian England: 1850-1895” (forth-coming, 1990), chapt. 3. 39Commonwealth v. Hamilton Mfg. Co., 120 Mass. 383 (1876). 40Astoundingly enough, this was sometimes done. It was called “swamping.” J. Commons and J. Andrews, Principles of Labor Legislation (N.Y., 1916), 106, note 60. 41120 Mass. 383, 384. 42The Social Law Library at the Supreme Judicial Court of Massachusetts has the briefs and records of some cases decided in the 1870s, but not those submitted in the Hamilton case. The librarians at the Social Law Library could not suggest any other source for the briefs (phone call to the Social Law Library, Supreme Judicial Court of Massachusetts, Feb. 1,1984).

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that the first women’s hours case, cited later by Cooley and by every other court that considered the issue, contained virtually no analysis or reasoning but was simply conclusory. Illinois: the Sole Successful Constitutional Challenge There is a hiatus of almost two decades from Hamilton to the next case challenging women-only hours laws, Ritchie v. People, decided by the Illinois Supreme Court in 1895.43 During that time, there were U.S. Supreme Court developments concerning substantive due process,44 state courts spoke out boldly in favor of freedom of contract,45 and commentators such as Cooley and Tiedeman expressed the doctrine of laissez-faire in more rigid terms than in earlier times.46 Ritchie was a challenge to the constitutionality of an 1893 statute limiting women’s hours of work in factories to eight per day. The statute was overturned on freedom of contract grounds— a most shocking result to many commentators of the period. In order to understand how this result came about, it is necessary to investigate the history of the statute and the development of laissez-faire doctrine from 1876 to 1895. The history of protective labor legislation in Illinois has some unique aspects. The first Illinois labor law was an eight-hour law for all workers that was ineffective because it permitted the par­ ties to specially contract for overtime.47 This statute was typical of laws enacted in many other states. What was unique about it was that it referred to the worker as “he or she”—most states considered the male pronoun sufficient. One of the other unique aspects of Illinois law is that in 1872, just as Myra Bradwell’s chal­ lenge to the exclusion of women from the bar was pending be­ fore the U.S. Supreme Court, the Illinois legislature passed an act providing that “no person shall be precluded or debarred from "Ritchie v. People^ 155 111. 98, 40 N.E. 454, 29 L.R.A. 79 (1895). '“Lawton v. Steele, 152 U.S. 133 (1893) (The Court declared at 136-37 that courts must scrutinize legislation to determine whether it was passed under the “guise” of the police power); Mu­ gler v. Kansas, 123 U.S. 623 (1887) (discussed in Jacobs, 85-86); Butchers* Union Co. v. Cres­ cent City Co., Ill U.S. 746 (1884) (concurring opinions of Justices Field and Bradley, dis­ cussed in Jacobs, 48-49); Davidson v. New Orleans, 96 U.S. 97 (1878) discussed in Jacobs, 47-48; Munn v. Illinois, 94 U.S. 113 (1876), discussed in Jacobs, 46-47. 45See cases cited notes 51-53 infra. 46See text accompanying notes 60-61 infra. 471867 Illinois Laws p. 101.

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any occupation, profession, or employment (except military) on account of sex.”48Bradwell finally gained bar admission pursuant to this statute.49 In 1893, Florence Kelley and her associates at Hull House managed to lobby through the Illinois legislature a bill prohibiting children under 14 from being employed in factories and work­ shops and limiting women’s work therein to eight per day and 48 per week.50 Soon Kelley (appointed factory inspector under the act) obtained several indictments under the act, one against the Ritchie Co. The defendants claimed the law was unconstitu­ tional as a violation of the right to liberty of contract. The Hamilton case stood as precedent for upholding the law, but much contrary precedent had been developing since then. Il­ linois had many such precedents of its own. Several rather in­ nocuous Illinois laws had been overturned on a liberty of con­ tract theory.51 Other state courts had also been busy.52 The 48Act of March 22, 1872 Illinois Laws 578. 49E. James, et al, eds., Notable American Women, 1607-1950 (Boston, 1971), 225. She did not re-apply for admission. The Illinois Supreme Court granted her the license to practice law on its own motion, 20 years after she had originally applied (Gilliam, 128). 50Act of June 17, 1893 Illinois Laws §§ 21-31, pp. 76-78. For an account of Hull House lobbying for the act see J. Goldmark, Impatient Crusader: Florence Kelley*s Life Story (N.Y., 1953), 31-35 and E. Brandeis, 465-66. An earlier statute had prohibited employment of most chil­ dren under thirteen. Act of June 17, 1891 Illinois Laws, 87. It is not clear whether Kelley influenced the passage of that act. 51Lake View v. Rose Hill Cemetery, 70 111. 191 (1873), has been cited as the first case in which a statute was invalidated on the principle that “the judiciary [can] decide whether a statute [is] a real or a pretended exercise of the police power” (Jacobs, 41). Then in 1886, in Millett v. People, the Illinois Court overturned a statute requiring coal mining companies to weigh the coal mined and pay the miners on that basis, “what is there in the condition of the laborer in the mine to disqualify him from contracting in regard to the price of his labor.. . . ?” the court asked. 117 111. 294, 302. It should be remembered that, only seven years before, women and children had been prohibited from working in mines. Thus, when the court quoted liberally from Cooley, including his statement that “[distinctions. . . should be based upon some reason which renders them important—like the want of capacity in infants and insane persons. . . .” (301). The court may well have been considering the fact that all miners were adult males, for whom no exception to freedom of contract could be found. Six years later a law forbiding mining and manufacturing establishments from running company stores (with all the abuses incident thereto) was voided by the same court in Frorer v. People, stating: There is nothing in operating mines or manufacturies to render individuals employed therein less capable to contract. . . . 141 111. 171, 178 (1892). Decided on the basis of Frorer were two later cases by the Illinois court—Ramsey v. People, 142 111. 380 (1892), overturning an act requiring payment of wages on the basis of the weight of the coal mined, and Braceville Coal Co. v. People, 147 111. 66 (1893), voiding an act requiring the weekly payment of wages. 52One of the most often-cited laissez-faire cases was decided by the New York Court of Appeals in 1885 —Matter o f Jacobs, 98 N.Y. 98 (1885). The court held a law prohibiting the manufac­ ture of tobacco products in residential tenement buildings unconstitutional as depriving a

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common theme of these cases was that freedom of contract was the general rule and exceptions would be lawful only if a) one party to the contract was under a disability or otherwise incapable of contracting, or b) if restrictions on liberty of contract were necessary for the benefit of or to protect the rights of others, fol­ lowing the common law maxim sic utere tuo, ut alienum non laedes: “so use your own as not to injure another.”53 It would have been possible to restrict women’s liberty of con­ tract under either of these two exceptions. The first exception could be used because women (at least married women) were tradi­ tionally considered dependent and under the protection of their husbands.54 And the second exception could be applied on the theory that limiting women’s hours of work was necessary for the benefit of their children: either born or to be born. This second theory, which developed into the Muller mother-of-the-race ar­ gument, was not apparent in cases from this period. However, language supporting the view that freedom of contract is a male right was common at that time. For example, some opinions con­ tain references to male workers as the head and support of the household, consistent with the common view that it was a man’s role to work to support the family.55Family members might “help” cigarmaker of his property (his apartment) and his liberty (to dispose of his labor) without due process, stating in language that foreshadows Lochner: It is plain that this is not a health law, and that it has no relation whatever to the public health. Under the guise of promoting the public health the legislature might as well have banished cigarmaking from all the cities of the State, or confined it to a single city or town, or have placed under a similar ban the trade of a baker, or a tailor, of a shoemaker, or a woodcarver, or of any other of the innocuous trades carried on by artisans in their own homes.. . . When a health law is challenged in the courts as unconstitutional on the ground that it arbitrarily interferes with personal liberty and private property without due process of law, the courts must be able to see that it has at least in fact some relation to the public health, that the public health is the end actually aimed at, and that it is appro­ priate and adapted to that end. 98 N.Y. at 114-15. Such language about the power of the judiciary to penetrate the guise of the legislature became common in the laissez-faire cases of the day and was used to invali­ date other statutes in People v. Marx, 99 N.Y. 377 (1885) (ban on sale of margarine), People v. Gillson, 109 N.Y. 389 (1888) (law prohibiting use of free gifts to sell products), and other New York cases. 53See Leep v. Railway Co., 58 Ark. 407,415-21 (1894). For discussions of the sic utere tuo maxim, see Jacobs, 60-61, and E. Corwin, Liberty Against Government: The Rise, Flowering and Decline o f a Famous Judicial Concept (N.Y., 1948), 82. S4See note 40 supra. 55See, for example, the following language from the oft-cited New York case, Matter of Jacobs, 98 N.Y. 98 (1885), discussing the maleficent effects of the New York law prohibiting the manufacture of tobacco products in residential tenement buildings:

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him, but that was to be expected because he was entitled to their labor.56 An 1886 Pennsylvania case, Godcharles & Co v. Wigeman, gave the courts some quotable phrases: [A]n attempt has been made by the legislature to do what, in this country, cannot be done; that is, prevent persons who are sui juris from making their own contracts. The Act is an infringement alike of the right of the employer and the employee; more than this, it is an insulting attempt to put the laborer under legislative tutelage, which is not only degrading to his manhood, but subversive of his rights as citizen of the United States.57

The “degrading to his manhood” language is a clear indica­ tion that liberty of contract was viewed as a right pertaining first and foremost to adult males, who would be expected to be offended if they were treated like women, children, or insane persons who needed “legislative tutelage.” The "suijurisf language is of the same general import. Black’s law dictionary defines sui juris as follows: On his own right; possessing full social and civil rights; not under any legal disability, or the power of another, or guardianship. Having capacity to manage one’s own affairs, not under legal disability to act for one’s self.58

The only individual who was deemed to have full rights in this sense was the mentally competent adult male. On the basis of precedent, therefore, the Illinois Supreme Court coud have gone either way: it could have held that freedom of contract is the general rule and thus women’s hours could not He must either abandon the trade by which he earns a livelihoodfor himself andfamily, or, if able, procure a room elsewhere, or hire himself out to one who has a room upon such terms as, under the fierce competition of trade and the inexorable laws of supply and demand, he may be able to obtain from his employer. He may choose to do his work where he can have the supervision of his family and their help, and such choice is denied him. He may choose to work for himself rather than for a taskmaster, and he is left without freedom of choice. He may desire the advantage of cheap production in consequence of his cheap rent and family help, and of this he is deprived. In the unceasing struggle for success and existence which pervades all societies of men, he may be deprived of that which will enable him to maintain his hold, and to survive (104-105 emphasis added). S6It should be recalled that a husband had a right to his wife’s services in the home and, until the Earnings Acts, could even collect her paycheck from the employer. For discussion of the husband’s right to the wife’s services in the home, which continues to the present in most states, see L. Weitzman, The Marriage Contract (N.Y. 1981), chapt. 3. For a discussion of one of the Earnings Acts, see N. Basch, In The Eyes Of The Law: Women, Marriage, and Property in 19th Century New York (N.Y., 1982), especially chapt. 6. 57113 Pa. 431, 437 (1886) (emphasis added). 58BLACK‘S LAW DICTIONARY (5th ed. 1979), 1286.

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be limited, or it could have held that women were an exception to the general rule because of a lessened capacity to contract. The court took the former course. Two peculiarities of Illinois law were roadblocks to the latter course: the 1872 law guaranteeing women freedom of occupation, and the use of the words “he or she” in the 1867 “special contract” eight-hour law.59 Addition­ ally, the Illinois precedent, in contrast to the precedent from other jurisdictions, did not contain language concerning possible ex­ ceptions to freedom of contract for women. The famous treatises of the day led in both directions. Cooley in his fifth edition (1883, and thereafter) added a passage in which he stated: [I]t is proper to recognize distinctions that exist in the nature of things, and under some circumstances to inhibit employments to some one class while leaving them open to others.

Some employments, for example, may be admissiblefor males and improperforfemales, and regulations recog­ nizing the impropriety and forbidding women engaging in them would be open to no reasonable objection.60

On the other hand, Christopher Tiedeman, in his 1886 Limi­ tations of Police Power; disagreed with Cooley concerning most restrictions on employment of adult women. He wrote: It may be, and probably is, permissible for the State to prohibit pregnant women from engaging in certain employments, which would be likely to prove injurious to the unborn child, but there can be no more justification for the prohibition of the prosecution of certain callings by women, because the employment will prove hurtful to themselves, than it would be for the State to prohibit men from working in [unhealthy occupations].61

The exception for pregnant women could probably by justi­ fied, in Tiedeman’s mind, on the sic utere tuo principle because the state would have the power to limit a woman’s liberty of con­ tract so that she does not use it to harm another—namely, the fetus. Moreover, by 1886, there was a general concern about race degeneracy. Darwin had published his Origin of Species in 1859, and Social Darwinism taught that race degeneracy could be 59See text accompanying note 47 supra. 60Cooley (5th ed.), 745, (footnotes omitted). 61C. Tiedeman, A Treatise on the Limitations of Police Power in the United States (Boston, 1886), 199-200.

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avoided only by valuing the race above the individual. In prac­ tical terms, this meant that women’s lives would have to be regu­ lated for the sake of the children they were expected to bear. In 1873 a book arguing against higher education for women on the ground that it destroys their reproductive capacity was a best seller.62 Suggestions were made that women should be prohibited from working for a period of time before and after childbirth.63 State legislatures passed laws adding to mining other occupations prohibited to women.64 The “race degeneracy” or “bearer of the race” argument can be viewed as even more objectionable than the woman-as-dependent argument because it treats women as objects: as means rather than ends. They are being “protected” not for their own sakes, but for the sake of others who may not even come into existence. The State of Illinois’ brief in the Ritchie case referred to the mother-of-the-race argument at two points; additionally, the state included a fair amount of “scientific” “Brandeis-brief’ type of material concerning the relationship between hours of labor and women’s health (leading one to question whether Brandeis really invented this technique).65 The manufacturers countered with “studies” showing that the health of women workers did not de­ teriorate on account of long hours and charts demonstrating that if women’s hours were reduced, their pay would be also, and some­ times to the point of leaving a gap between the income needed to live and the income actually received.66 Additionally, almost all of the women workers who were witnesses at the trial testified that they wanted to work the longer hours to get higher pay.67 62E. Clarke, Sex in Education (N.Y. 1873), passim. 63In 1879, Adolphe Strasser, the president of the Cigar Makers’ International Union, wrote: “married women should be kept out of factories at least 6 weeks before and 6 weeks after confine­ ment” {Cigar Makers* Journal, Sept. 15, 1879, quoted in A. Kessler-Harris, Out to Work (N.Y. 1982), 202. Such suggestions were eventually enacted into law in Connecticut (1913), Massachusetts (1911), Missouri (1919), New York (1912), Vermont (1917), and Washington (1918). See U.S., Dept, of Labor, Bulletin of the Women’s Bureau, No. 66-11, F. Smith, “Chronological Devel­ opment of Labor Legislation for Women in the United States” (Revised ed. 1931, hereinafter cited as “Labor Legislation for Women”). 64See Kessler-Harris, 185-186. For example, in 1885 New Jersey prohibited jobs cleaning moving machinery; Missouri did the same in 1891; in 1899 New York forbad operating polishing or buffing wheels; Michigan did the same in 1905; and in 1912 Massachusetts prohibited lifting weights in excess of 40 pounds. These statutes were followed in later years by many other prohibitions (See “Labor Legislation for Women”). 65Kessler-Harris, 14-17, 48-49. 66Brief for Plaintiffs in Error, 58-59. 67Abstract of Record, passim. 209

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There is no evidence of such testimony in any of the other women’s hours cases.68 The unique Illinois statutes, the sex neutrality of Tiedeman, the studies and charts submitted by the defendants, and the tes­ timony of the women workers are all possible partial explana­ tions for the Illinois court’s stance of equality between men and women. Whether these factors were truly influential and whetlier there were other factors at work calls for further study. Three More States Uphold Sex-Based Hours Laws The next women’s hours case—the Pennsylvania Common­ wealth v. Beatty case in 1900—reverted to viewing the liberty of contract doctrine as protecting adult males only.69This is not sur­ prising in light of sex-based Pennsylvania precedent70 and some important dictum in a U.S. Supreme Court case—Holden v. Hardy.11 Holden upheld a Utah eight-hour law for mineworkers. The Court pointed out that the liberty of contract doctrine made an exception for health, safety, morals, and nuisance laws. The Court pointed out that states had passed numerous safety statutes to protect the lives of workers. If such laws were valid, then why not laws for the protection of such workers’ health and morals, such as hours laws? Justice Brown stated: In other states laws have been enacted limiting the hours during which women and children shall be employed in factories; and while their constitutionality, at least as applied to women, has been doubted in some of the states, they have been generally upheld [citing Hamilton].12

This appears to be an explicit affirmation of the validity of women-only hours laws, albeit in dictum. Likewise, the Court concluded, hours may be restricted when the work done is not an “ordinary employment,” but is 68In each of the other cases, the employer was being charged with a violation of the law by over­ working one woman, and there is no record in the briefs that exist of any testimony by that woman. 69Commonwealth v. Beatty, 15 Pa. Super. 5 (1900). 70Commonwealth v. Brown, 8 Pa. Super. 339 (1898); Showalter v. Ehlan, 5 Pa. Super. 242 (1897); Durkin v. Kingston Coal, 171 Pa. 193 (1895); Godcharles v. Wigeman, 113 Pa. 431 (1886) (see text accompanying note 57 supra); Wheeler v. Pennsylvania, 77 Pa. 338, 349 (1875). 71169 U.S. 366 (1898). 72Ibid., 395. 210

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carried on beneath the surface of the earth, where the operative is deprived of fresh air and sunlight, and is frequently subjected to foul atmosphere and a very high temperature, or to the influence of noxious gases generated by the processes of refining or smelting.73

As some commentators have pointed out, mining traditionally had been viewed as an ultrahazardous activity.74For that reason, most states prohibited employment of women and children in mines.75 By permitting extra protection for miners, then, the Court was simply following the common law categories. However, the court added one further reason for upholding the law—the im­ balance Of bargaining power between employer and employee.76 It is not clear why the Court considered coal miners, but not the bakers in Lochner, a “captive labor force,”77 but this rationale was another that could be, and was, used in Muller. Such was the state of U.S. Supreme Court precedent in 1900 when the Pennsylvania court considered the constitutionality of the hours law for women. The trial court upheld the statute, stating: “Surely an act which prevents the mothers of our race from being tempted to endanger their life and health by exhaus­ tive employment can be condemned by none save those who ex­ pect to profit from it.”78The Superior Court affirmed that judg­ ment on the authority of Holden, concluding: Adult females are a class as distinct as [children], separated by natural conditions from all other laborers, and are so constituted as to be unable to endure physical exertion and exposure to the extent and degree that is not harmful to adult males.79

Clearly the “natural” distinctions between women (and children) and men permitted the court to uphold a law which, for men, would have had little chance for survival. Two women’s hours cases came down in 1902, one in Nebras­ ka 80and the other in Washington State.81 The Nebraska 10 hour ,3Ibid. 74L. Tribe, American Constitutional Law (Cambridge, MA, 1978), 437. 75See, for example, Act of Feb. 24, 1883, Sec. 5, 1883 Colo. Laws, 102, 106. 76169 U.S. 397. 77Tribe, 440, note 18. 7815 Pa. Super. 8 (the lower court opinion is printed before the Superior Court opinion in the same reporter). 7915 Pa. Super. 19. 80Wenham v. State, 65 Neb. 394 (1902). 81State v. Buchanan, 29 Wash. 602 (1902).

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law was passed in 1899.82 By that time the Nebraska courts had already voided an 1891 10-hour law for all workers in a case in­ volving an adult male printer.83 Thus, when the issue of the 10hour law for women was presented to the court, it could have followed Ritchie and its own precedent to invalidate the law. Instead, it upheld the statute, in an opinion that utilized nearly every possible justification for different treatment of men and women: political, physical, sex-role, and economic differences. The political differences were that women were only “partly eman­ cipated from their common-law disabilities” and could not vote.54 Physically, women could not endure as many hours of exhaus­ tive labor, the court opined: it would destroy their health and leave them unable to carry out their role of caring for home and children.85 Finally, the court relied on assumed economic differ­ ences between men and women: only a few occupations were open to women, so there was great competition for few jobs, which meant that out of desperation they would accept any job at any wages for any amount of hours.86 There is some validity to this argument, of course; however, it was not a difference of kind but of degree—many men were desperate for jobs too. Throughout the opinion, there was no mention of Ritchie, as though that case was such an aberration that it need not be acknowledged. The Washington State court came to the same conclusion, despite the fact that Washington had recently passed a statute like the Illinois law guaranteeing women equal employment op­ portunity.87 That act was never mentioned by the court. The opinion concluded: It is a matter of universal knowledge with all reasonably intelligent people of the present age that continuous standing on the feet by women for a

821899 Laws, ch. 107, H.R. 192, p. 362. 83Low v. Rees Printing Co., 41 Neb. 127 (1894). 8465 Neb. 394, 405. 8SIbid. “[TJheir share of the burdens of the family and the home” has to refer to child-rearing and housework, not the physical bearing of children. Contrast the view of the Wenham court (women’s hours in paid labor must be reduced so that she is able to perform her housewifely duties at home) with the view of a socialist-feminist only eight years later (hours of paid labor for both men and women must be reduced so that both can share the housework). See Malkiel, “The Housewife and the Eight-Hour Day,” Chicago Daily Socialist, April 39, 1910, excerpted in G. Lemer, ed., The Female Experience: An American Documentary (Boston, 1977), 136. 8665 Neb. 394, 405. 871890 Washington Laws, 519.

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great many consecutive hours is deleterious to their health. It must logically follow that that which would deleteriously affect any great number of women who are the mothers of succeeding generations must necessarily affect the public welfare and the public morals.88

It is noteworthy that neither of the briefs had referred to the mother-of-the-race argument, yet the court used it. It is also notable that in Muller the U.S. Supreme Court seemed to para­ phrase this language, thus relying on Buchanan rather than (or in addition to) the Brandeis brief.89 Buchanan was the last state supreme court case to address the issue of women-only hours laws prior to Lochner.90 Lochner New York had a 10-hour law for women before the Lochner statute restricting bakers’ hours was passed in 1895.91The bakers law was part of an act containing many health and sanitation regulations for bakeries. It was upheld in the two New York ap­ pellate courts by narrow margins.92 Judge Vann’s concurring opinion in the Court of Appeals is of special import because it presents a “Brandeis brief’ for the statute’s validity, with cita­ tions concerning the unhealthfulness of the baking profession from medical books and journals, encyclopedias, census data, and many other sources. He concluded: As statutes are valid which provide that women or children shall not be employed in any manufacturing establishment more than a certain number of hours in a single day, so I think an act is valid which provides that in an employment which the legislature deems, and which is in fact, to some extent detrimental to health, no person, regardless of age or sex, shall be permitted or required to labor more than a certain number of hours.93

The U.S. Supreme Court was not convinced by the arguments accepted by the Court of Appeals. Presented with a mini-Brandeis “State v. Buchanan, 29 Wash. 602, 610. 89See text accompanying note 121 infra. 90Lochner v. New York, 198 U.S. 45 (1905). The New York State Court of Appeals in 1907 upheld a prohibition on night work for women. People v. Williams, 189 N.Y. 131 (1907). However, the Williams court indicated it might have ruled differently on a question of maximum hours alone (135). 91The daily hours of employment for women under 21 were limited to 10 by 1889 New York Laws ch. 560. In 1899, this restriction was extended to all women (1899 New York Laws ch. 192, sec. 77). The Lochner statute was enacted in 1897. 1897 New York Laws ch. 416. 92People v. Lochner, 73 App. Div. 120 (4th Dep’t. 1902), affd, 177 N.Y. 145, 69 N.E. 373 (1904). 93177 N.Y. 174. 213

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brief from Mr. Lochner, citing medical and other authorities to show that baking was not an occupation with unusual health hazards, the Court overturned the law by a five to four margin.’4 In its choice of words and phrases, however, it clearly left open the possibility that a women-only hours law would be upheld. Justice Peckham referred to the bakers as “all... men, suijuris.”9* Then twice more he used the phrase sui juris.96 In another place he referred to the bakers as “grown and intelligent men.”97 Addi­ tionally, he stated: There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able to assert their rights and care for themselves without the protecting arm of the state. . . ,98

Women and children were, of course, viewed as needing the state’s protective arm, as the U.S. Supreme Court was to indicate in Muller. In summary, there are two important points concerning Lochner that are significant for an analysis of Muller. First, med­ ical materials such as those presented in the Brandeis brief in Muller were also presented to the courts in Lochner, albeit in less copious quantities; so the argument that a “Brandeis brief’ might have saved the Lochner statute is not convincing. Second, “[w]hile sexual distinctions are not [explicitly] articulated in the Lochner opinion, the tone of the majority’s language reveals such distinc­ tions to be important to the outcome of the case.”99 In Lochner, the court left the door wide open for a decision upholding the constitutionality of women-only hours restrictions. Muller Muller was a challenge to a 1903 10 hour law for women laundry and factory workers.100 The Oregon supreme court was 94198 U.S. 45 (1908). The mini-Brandeis brief was in the form of the Appendix to Lochner’s brief; it provided medical and “sanitary” authorites to support the proposition that baking is not a dangerous or unhealthy occupation. Brief for Plaintiff in Error at 50-61, Lochner v. New York, 198 U.S. 45 (1905). 95198 U.S. 64. 96I b i d 54, 58. 91 Ibid., 61. 98Ibid., 57. 99C. Dalrymple, “Sexual Distinctions in the Law: Early Maximum Hour Decisions of the United States Supreme Court, 1905-1917” (unpublished PhD diss. Univ. of Florida, 1979), 101. 1001903 Oregon laws, 418. 214

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not deterred by Lochner—it relied on the fact that women-only hours laws had been upheld by every state high court except Il­ linois, and Ritchie was dismissed as “borne down by the weight of authority and sound reason.”101 The National Consumers’ League got wind of Muller’s ap­ peal to the U.S. Supreme Court, and Florence Kelley engaged Louis Brandeis to write a brief in the statute’s support.102 Then work began on what has come to be known as the “Brandeis brief’ (although Josephine Goldmark and other woman of the NCL deserve equal credit for it). To the modern lawyer, “Brandeis brief’ has become a generic term for a brilliant combination of social, economic, or scien­ tific knowledge that tends to persuade the court of the sound­ ness of the legal arguments. Actually, its legal argument is almost nonexistent, and the social and scientific data appear very un­ scientific to the modern eye.103 Especially questionable are the attempts to justify the law’s coverage of women only. It is not difficult to show that overwork is damaging to any worker, and it could be argued convincingly that there is a significant differ­ ence between factory or workshop labor and work performed elsewhere, in terms of pace, variety, and opportunity for rest. However, the strategy that Brandeis chose was not simply to show that the type of work regulated by the law was especially taxing. He also tried to prove that the type of worker “protected” —the woman worker—was in special need of protection. He based his argument on four “matters of general knowledge”:104 first, women are physically weaker than and otherwise physically different from men;105second, damage to a woman’s health might affect her future reproductive capacity;106 third, the health of a child may be damaged by overworking its mother;107 and fourth, excess hours of labor deprive the family of her services in the home.108It should be noted that three of the four rationales con­ cern not the woman herself, but rather her actual or potential ‘"'State v. Muller, 48 Ore. 252, 258, 85 Pac. 855 (1906). "“Crusader, 143-55. '“See Baer, 59-61. '“Muller v. Oregon, 208 U.S. 421. 105Brief for Defendant in Error, Muller v. Oregon, 208 U.S. 412 (1908). l06Ibid., 22, 33, 35, 36-42, 49-55, 61. 107Ibid.f 33, 35, 38, 42, 49, 59. l06Ibid.t 20, 33, 42, 48-51, 93, 97.

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family. Additionally, one rationale involves not physical differ­ ences between the sexes but social sex roles with regard to child­ care and housework. As indicated above, all of these arguments had appeared in earlier cases. They also appeared in the brief for the state, although in a more legalistic form than in the Brandeis brief.109 Muller’s brief relied on the argument of equality between the sexes that was evident in Tiedeman’s treatise and that had been successful in persuading the Illinois Supreme Court to overturn its women-only hours legislation.110 The argument sounds a bit strained, coming as it did from the employer, not the woman. Yet there is a modern ring to Muller’s insistence that women have the same rights as men and do not need the “protecting arm of the legislature” any more than do men.111 Furthermore, to some women the law might be a restriction rather than a protection because they needed the extra money.112 The brief stated: For reasons of chivalry “we may regret that all women may not be sheltered in happy homes, free from the exacting demands upon them in pursuit of a living, but their right to pursue any honorable vocation . . . is just as sacred . . . as the same right enjoyed by men.”113

Muller’s brief also used the approach of analogizing sex discrimi­ nation to race discrimination, as the brief in Bradwell had done over three decades before.114 Muller denied that protection of a woman’s own health was a sufficient reason for the law because men’s health would need the same protection. He flatly disputed the argument that women could be “protected” for the sake of “possible children” in the “distant and remote future.”115 On February 8,1908, Justice Brewer handed down his opinion for a unanimous Court.116 A clue that more than the Brandeis 109Brief for the State of Oregon at 10, 12, 14, 19, Muller v. Oregon, 208 U.S. 412 (1908). U0Ritchie v. People, 155 111. 98 (1895), discussed in text accompanying notes 43-68 supra. lnBrief for Plaintiff in Error at 16, Muller v. Oregon, 208 U.S. 412 (1908, hereinafter cited as Muller’s brief). 112Muller,s brief, 19. 113Ibid., 24. Thus the briefwriter .. med to recognize that what we today would call “sexual stereotyping” might underlie the law. See Orr v. Orr, 440 U.S. 268 (1979). 114Muller,s brief, 14. For the analogy of race discrimination to sex discrimination in Bradwell, see Bradwell v. Illinois, 83 U.S. 130, 135-36 (1872). 115Muller*s brief, 19-20. See also 26. n6Muller v. Oregon, 208 U.S. 412 (1908).

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brief was at work in the Muller opinion is the vote on the Court. The vote in Lochner had been five to four.117 Between Lochner and Muller only one of the five majority justices had been replaced. Assuming that Moody, the new Justice, might go with the Lochner dissenters, that still leaves four justices to persuade in order to get a unanimous opinion. It seems unlikely that any brief, no matter how persuasive, could change the minds of all four if some of them had not been inclined in that direction al­ ready because of traditional views of the differences between men and women. This is especially true of Brewer and Peckham, who had even dissented in Holden.118 A careful search of the opinion reveals how the Court used the various briefs. The Court credited Brandeis in a footnote,119 but nothing in the specific language of the opinion appears to have been taken from his brief. The “women need protection” argument and the “bearer of the race” argument are the heart of the opinion. As has been shown, those arguments were not created by Brandeis and were urged in the State’s brief as well as in Brandeis’s. It is likely that the Court would have accepted these arguments even without Brandeis’ “authorities.” Much of the specific language in the opinion can be traced to the state court opinions upholding women-only hours laws. Where the Court’s opinion contains language that cannot be traced, that language evidences a deeply held belief in immutable differences between the sexes that ordain for them totally sepa­ rate spheres of existence, reminiscent of Bradley’s concurring opinion in Bradwell.120 Justice Brewer began the substance of his opinion by discussing physical differences between the sexes, seeming to paraphase the Washington opinion.121 Then the Court referred to the common law view of women’s legal status. “As minors, though not to the same extent, she has been looked upon in the courts as needing especial care that her rights may be preserved,” Brewer stated, U7Harlan, White, Holmes, and Day dissented. 198 U.S. at 65-76. 1“Holden v. Hardy, 169 U.S. 366 (1898), discussed in text accompanying notes 70-73. 1,9Muller v. Oregon, 208 U.S. 412, 419 note 1. 120Bradwell v. Illinois, 83 U.S. 130, 139 (Bradley, J., concurring). mMuller v. Oregon, 208 U.S. 421, seeming to paraphrase State v. Buchanan, 29 Wash. 602 (1902), quoted at text accompanying note 88 supra.

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appearing to paraphrase the 1900 Pennsylvania opinion.122 Un­ doubtedly realizing that its holding would not long endure if it was based on women’s common law status, the Court added that even if all common law disabilities were removed, there is that in her disposition and habits of life which will operate against a full assertion of those rights. She will still be where some legislation to protect her seems necessary to secure a real equality of right.123

Women’s “disposition” (seemingly, personality) had not been dis­ cussed by Brandeis. “Disposition” is reminiscent of Cooley’s views of women’s dependent nature.124 The Court hastened to add the passage of a woman suffrage amendment would not alter the decision.125Again, this is a matter Brandeis had not addressed, although the Nebraska case had.126 “The reason [for the validity of special labor laws for women] runs deeper, and rests in the inherent differences between the two sexes, and in the different functions in life which they perform.”127 It is clear that the Justices intended their decision to be valid for all time and viewed it as resting on far more than Brandeis’s “sci­ entific” data.

122Muller v. Oregon, 208 U.S. 421, paraphrasing Commonwealth v. Beatty, 15 Pa. Super. 5 (1900), quoted at text accompanying note 79 supra. 123Muller v. Oregon, 208 U.S. 422-23. l24See Cooley, note 30 supra. 125MulIer v. Oregon, 208 U.S. 423. 126See text accompanying note 84 supra. 127Muller v. Oregon, 208 U.S. 423.

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PROTECTION OF WOMEN WORKERS AND THE COURTS: A LEGAL CASE HISTORY

ANN CORINNE HILL The issue of protective labor legislation for women has been at the center of many discussions of the proposed Equal Rights Amendment to the United States Constitution. Advocates of the amendment have argued that protective legislation that applies only to women is discriminatory, that the effect of such laws is too often to restrict women’s employment opportunities rather than to “ protect” them on the job. In contrast, opponents o f the amendment often take the position that it will fly in the face of a century-long struggle for the protection of women workers by eliminating labor laws that are necessary and beneficial.1 The current debate over protective legislation has faltered because both sides have argued their positions in an historical vacuum. This essay is an attempt to contribute to a feminist perspective on the question by examining the largely unknown history of protective legislation in the United States in one important context, that of the decisions of the courts and particularly the Supreme Court, over the last one hundred years on the constitutionality of these laws. Protective labor legislation owes much of its shape—its very existence—to the decisions of state and federal courts upholding its validity. To understand the decisions of the courts, we must place them against a background of two dominant and pervasive factors in American labor history: segregation in jobs and sex-based discrimination in the labor market. Language itself—there are workers, and then there are women workers—underscores this fact. Even today, as we read of women becoming the “ first female” police officers, bus drivers, firefighters and construction workers in their locales, federal statistics bring us back to the economic reality that a woman earns, on average, fifty-seven cents for every dollar earned by a man. The Equal Pay Act and Title VII notwithstanding, the two dominant features of the labor market for women still remain

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segregation in low-paying, dead-end jobs in traditionally female occupations and discrimination against those who compete with men for traditionally male jobs. It is in this context of sex segregation and discrimination that we must understand the concept of “ protection” of women workers. It is my contention that the courts, in their decisions on protective legislation, have legitimated rather than challenged the second-class position of women in the American labor force. After a hundred years of rulings on various aspects o f the employment of women, the courts in general and the United States Supreme Court in particular, have yet to recognize that women have a rigfit to employment, a right to enter and pursue the occupation of their choice. The Supreme Court has viewed and continues to view women as “ special,” in a class by themselves, when it comes to employment. The courts generally see male workers as the norm and treat women as “ aliens” in the labor force. They have conferred alien status upon women in the workforce by upholding laws that prohibit them from working in certain occupations; by validating socalled protective laws for women only that set different employment terms for women than for men (thereby making them unable to compete on the same terms); and most recently, by limiting women’s fringe benefits to only those benefits required by men. My analysis will focus on four historical periods. Concentrating on the implications of specific cases and decisions, I will try to lay the groundwork to answer what must be, for feminists, the ultimate question: Can women workers ever seek or accept protection as a class apart from working men without compromising their struggle for equality in the labor force? The first period opens with the decision of the Massachusetts Supreme Court in 1876 to uphold the first piece of protective legislation for women, and it closes with a ruling by the Supreme Court in 1923 that struck down a minimum wage law for women on the grounds o f their supposed equality with men. Decisions in this early period focus on the constitutionality of protective laws for women only, and include the landmark Muller v. Oregon decision by the Supreme Court in 1908 , which continues to have the most far-reaching effects on the treatment of working women by the courts. The second period, 1935 to 1948 , encompasses the Great Depression and World War II. The exigencies of massive unemployment initially led to decisions which for the first time recognized the validity of protection for men and women alike; later, the contradictions of thousands of women taking so-called men’s jobs during the war raised new questions of equality in the labor force for consideration by the courts. The third period, 1964 to 1971 , was a time when unpre-

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cedented numbers of women entered the work force, aided by the first fair employment laws and an expanding war-time economy. For the first time, working women, rather than their employers, challenged protective legislation. The last section is devoted to the present, the last five years, during which the Supreme Court has ruled more often on cases charging sex discrimination against women workers than at any other time in its history. “ Protection” is still central to the debate in the recent cases; yet women workers are not seeking “ special” protection for themselves as a class apart from men, but rather protection equal to that alread afforded men. Furthermore, they are seeking protection against old and new forms of employment discrimination and occupational segregation by sex. Whether and to what extent the Supreme Court understands the nature of the new protection sought by working women is the focus o f my conclusion. Before turning to specific cases, a few remarks and qualifications are in order about the nature and efficacy of protective legislation. At the same time we analyze its effects, legally and socially, on limiting women’s employment, we must still keep in mind the limited area in which it has operated. Protective labor legislation for women has never covered all women workers. These laws were originally enacted for the protection of women working in factories. In some states, they were later extended to saleswomen and to women in laundries, restaurants, and canneries. There have never been laws enacted to protect the vast number of female domestic workers or women in agriculture; rarely have professional women, such as nurses, teachers, and clerical workers, been include At the peak of the protective labor legislation movement in 1930 , only one-third o f the eight and one-half million women working were covered by regulation o f their working hours. The scope of protective legislation has also been limited by difficulties in enforcing such laws. Each state has its own bundle of protective laws, and its own procedure for enforcement. Some of the laws are weakened at the outset by exceptions explicitly made for certain industries. For example, for years, many maximum hours laws excepted canneries during the months designated as “rush” season, which—in this seasonal industry—covered most of the months of employment. Other laws, although rigid in content are not enforceable as, for example, those that require chairs for women workers. Finally, the penalties for violating many protective laws are so low that they do not act as a deterrent.2

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THE FIRST COURT DECISIONS: 1876-1923 This period was marked by the struggle in the legislatures and courts for acceptance of the idea that workers, especially women and children, needed protection against their employers. By 1920 the legal, economic, and social bases for protective labor legislation for women, albeit not for men, were well established. A vocal minority of feminists, however, supporters of an Equal Rights Amendment, had begun to challenge the wisdom o f protective labor legislation that covered women only. For this reason certain factions of the movement for social reform in industry in this period called for protective measures for all workers, regardless of sex. But the first protective law, adopted in 1874 , was Massachusetts’ maximum hours law for women and children in the textile industry. Why were men excluded from this legislation? To answer this we must first look at the laissez-faire notion of freedom of contract. The theoretical right of men freely to enter into employment contracts—workers with capitalists, capitalists with workers—was considered the cornerstone of the American economy. Employees (males, that is) were, in theory, on an equal footing with their employers (also male), and had a right as citizens to be free o f interference in their affairs, even if that interference took the form of “ protection.” Women, however, still years away from the basic right to vote, were hardly able to be freely contracting citizens. Thus, like children, they were seen as fit subjects for regulation. In 1870 , their legal position was still derived from the common law notion that a woman, on marrying, became a part o f her husband. Until marriage, young women were considered wards o f the state; marriage simply transferred their wardship to their husbands. State laws limiting the property rights of married women by conferring the right of property management to their husbands were one manifestation of this wardship. The idea that women, married or single, had the right to engage in any lawful occupation o f their choosing also ran counter to the common law tradition. In 1872 , the Supreme Court upheld the decision of an Illinois court to deny a woman the right to practice law; and twenty years later it upheld another state court decision that denied women the right to practice law in state courts.3 This exclusion from certain occupations applied only to women; there were no instances in which men were forbidden from engaging in a particular occupation open to women. Of course, few men would have wanted the kind of work—and wages—available to women. In sum, then, if the law could exclude women entirely from some occupations, it could certainly “ pro-

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tect” them in others. And so, in 1876 the Massachusetts Supreme Court, in Commonwealth v. Hamilton Mfg. Co.,4 upheld the first maximum hours law for women and children as a valid health measure. There were, indeed, points at which the exclusion of men from protection was questioned. In Holden v. Hardy, in 1898,5 the Supreme Court upheld a maximum hours law for miners, as it had for female textile workers in Massachusetts, on the grounds that it was a valid health measure in such a hazardous and unhealthy occupation. But in 1905 it returned to a strict view of protection for men as interfering with their freedom of contract. In Lochner v. New York , 6 the Court ruled against a maximum hours law for bakers on the grounds that it was not a valid health measure and thus unnecessarily interfered with the right of bakers to make contracts freely determining their working hours. In an opinion rife with laissez-faire ideology, the majority stated, “ There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able to assert their rights and care for themselves without the protecting arm of the State interfering with their independence o f judgment and of action. They are in no sense wards of the state.”7 In effect, the majority had engaged in a game of intellectual dishonesty, elevating liberty of contract as an absolute right guaranteed by the Constitution, although as the dissenting Justice Holmes correctly pointed out, reasonable restrictions on this “ liberty,” such as those recognized in Holden v. Hardy, had been consistently upheld by the Supreme Court. Holmes charged the majority with riding roughshod over the right of the citizens of New York to adopt laws which protected the health of their workers. Considerable evidence had indeed been submitted to the Supreme Court that bakers’ work was grueling and unhealthy—no less so in its own way, in fact, than that of miners. Bakers suffered from inflammation of the lungs, running eyes, rheumatism, cramps and swollen legs, and had a shorter life span than that o f other workers, according to studies placed before the Court. The majority, however, ignored the impressive studies and reports submitted and stated firmly that “ to the common understanding, the trade of a baker has never been regarded as an unhealthy one.”8 Throughout the majority opinion, it is clear that the five justices dreaded creeping social welfarism. All the scientific data were supplanted by their “ common understanding” that bakers’ work was not dangerous and that bakers were not in need of protection. While they could not overrule Holden v. Hardy (three of them

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were in the majority in that case), they intended to insure that miners were the only exception to the rule that men needed wanted no legislative infringement on their “ right to contract.” It should be noted that the plaintiff in Lochner , as in Holden v. Hardy, was an employer who had been indicted for violating the maximum hours provision. Yet, in a twist of chicanery, the decision championed the right of the employees to freedom of contract. All protective labor legislation was fair game for constitutional challenges after the Lochner decision. Two years later, New York’s highest court invalidated a protective law that prohibited the employment of women at night because it was “ discriminative against female citizens, in denying to them equal rights with men in the same pursuit.”9 In Lochner , advocates of protection had gone for the whole loaf—protection of all workers—and lost. Determined to salvage the protective labor legislation movement in the face of these adverse decisions, its leaders joined forces to win back one-half the loaf—protection for women—in Muller v. Oregon ( 1908).10 It should be noted that protective labor legislation for women was, at the time, much less than one-half the loaf, because women comprised less than 20 percent of the work force and were concentrated in their own “ women’s industries.” Thus a ruling favorable to women stood little chance of affecting the majority o f American workers—men. It was because of the inventiveness of the leaders of the protective labor legislation movement, most of whom were women, that even laissez-faire judges could be convinced that the regulation of female workers posed no real threat. The Lochner Court had worried out loud that if (male) bakers could be regulated in their hours of work, so could (male) law clerks, (male) bank clerks, and other men employed by the professions. But because women were neither law clerks nor bank clerks, let alone lawyers or bankers, the creeping welfare state problem did not present itself with protective measures for them. Still, there remained the problem of making legal sense of invalidating protection for men while retaining it for women. A very capable group of reformers, led by Josephine Goldmark of the National Consumer’s League and Louis Brandeis, an attorney, showed the Supreme Court how to reconcile Lochner with a decision upholding the constitutionality of a maximum hours law for women in Muller. The “ Brandeis B rief’ argued that women were entitled to special protection on their jobs because, as mothers of the future generation, their health was a matter of public concern. Furthermore, women required such protection because “ scientific

and

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studies” showed that women were not physically constituted to withstand long hours of industrial labor, whatever the industry. These arguments, supported by hundreds of pages of “ scientific evidence” assembled by Josephine Goldmark, won the day for protection for women only in Muller.10 Acknowledging the impact of the Brandeis brief on its ruling, the unanimous Court concurred with the “ widespread belief that woman’s physical structure, and the functions she performs in consequence thereof, justify special legislation restricting or qualifying the conditions under which she should be permitted to toil.” The Court’s further remarks on the “ nature” of woman are worth quoting at length:

That woman’s physical structure and the performance of maternal func­ tions place her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity contin­ uance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon the body, and as healthy mothers are essential to vigorous offspring, the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race. The Court went on to observations about the innate dependence of the female sex:

Still again, history discloses the fact that woman has always been dependent upon man. He established his control at the outset by superior strength, and this control in various forms, with diminishing intensity, has continued to the present___ Doubtless there are individual exceptions, and there are many re­ spects in which she has an advantage over him; but looking at it from the view­ point of the effort to maintain an independent position in life, she is not upon an equality. Differentiated by these matters from the other sex, she is properly placed in a class by herself, and legislation designed for her protection may be sustained, even when like legislation is not necessary for men and could not be sustained.11 Muller's reasoning, so tailored to the Court’s notions about the social role of women, certainly did not advance the cause for men. The Court pointedly did not overrule its decision in Lochner. The Muller decision did, however, seem to guarantee certain success in the courts for all future protective labor laws for women—unless the very nature of women changed, or the form of the protection posed a threat to the reigning law of laissez-fairism. Yet, in a rather quick turnabout to this logic, nine years later the Supreme Court upheld a maximum hours law for men, in Bunting v. Oregon, 12 and fifteen years later it struck down a minimum wage law for women only, in Adkins v. Children's Hospital o f the District o f Columbia.13

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The same coalition that prepared Muller for the Supreme Court argued the constitutionality of the maximum hours law for men in Bunting and won the case. Their arguments are especially interesting in that they were analogous to those applied to women in the so-called Brandeis Brief in Muller. Josephine Goldmark and Felix Frankfurter, who replaced Brandeis as attorney, used the same scientific studies and reports from European countries submitted to the Muller court to prove that men’s health was destroyed by long working hours in the same way that the health of women workers was irreparably impaired. It should be noted, however, that while state courts immediately followed the Muller decision, Bunting was ignored, and stood alone for years as the only case recognizing that the state could regulate men’s hours in industries that were not extrahazardous (as was mining in Holden v. Hardy)}* In Adkins v. Children’s Hospital o f the District o f Columbia ( 1923 ), the strategy that had worked so well in Muller and Bunting of gaining Court approval of “ special protection” for women and then extending this protection to men was a miserable failure. The decision in Adkins defied the logic of Muller by invalidating a minimum wage law for women. The Adkins legacy was serious: not until 1941 , nearly twenty years later, was the Supreme Court able to overcome it and uphold as constitutional a minimum wage provision for workers. Reviewing its past decisions on protective labor laws—Holden v. Hardy, Lochner , Muller, and Bunting—the Adkins majority concluded that the Lochner dogma of liberty of contract should govern its opinion. The Adkins majority did not overrule Muller , but claimed that Muller was no longer controlling because women had achieved equality with men with the passage of the Nineteenth Amendment and no longer needed special protection in employment. The Court conceded that there were still physical differences between the sexes which could justify special maximum hours laws for women; but these could not be used to justify the new scourge of laissez-faire economics, the minimum wage law. At times the Court opinion in Adkins ironically reads like a feminist tract as it attacks Muller's paternalism:

The decision [in Muller] proceeded upon the theory that the difference between the sexes may justify a different rule respecting hours of labor in the case of women than in the case of men. It is pointed out that these consist in differences of physical structure, especially in respect of the maternal functions, and also in the fact that historically woman has always been dependent upon man, who has established his control by superior physical strength.. . . In view of the great—not to say revolutionary—changes which

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jjave taken place since that utterance, in the contractual, political, and civil status of women, culminating in the Nineteenth Amendment, it is not un­ reasonable to say that these differences have now come almost, if not quite, to the vanishing point.15

Because of these “revolutionary” changes, the Adkins Court de­ women’s freedom of contract could not be restrained:

clared that

To do so would be to ignore all the implications to be drawn from the presentday 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.16 The Adkins Court thus recognized that so-called protective measures might actually serve as restraints on women workers when applied only to them and not to their male counterparts. But despite the heady egalitarian language of the Court, its main concern was not guaranteeing the individual plaintiff, who earned thirty-five dollars a month as an elevator operator, the right to compete equally on the job with men; rather, it was to quash the latest attempt at social welfare legislation. One final note on Adkins : there is a distinct quality of what I call “ equal-rights-with-a-vengeance” in the Court’s majority opinion. On the one hand, the majority agreed with Muller 's opinion that women’s physical differences still make them physically unequal with men; on the other, the Court found that the Nineteenth Amendment, like magic, gave women instant equality with men in all fields of endeavor. The Court told women that, with the help of the Nineteenth Amendment, they were free to run on the same track with men as equals, as if they were at the same starting point. This insistence on the equality of women provoked a no less adamant insistence by two justices in their dissents that women were not (and never would be) equal because of their physical differences. As one stated succinctly, “ It will need more than the Nineteenth Amendment to convince me that there are no differences between men and women, or that legislation cannot take those differences into account.”17 Neither Muller nor Adkins addressed the issue crucial to women: whether differential treatment of women and men workers was an invidious and unconstitutional form of discrimination, like race discrimination, which violated the Equal Protection Clause of the Fourteenth Amendment. And so women were forced to choose between decisions like Muller that upheld much-needed protective measures at the cost of separate and unequal treatment, or decisions

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like Adkins that espoused a theoretical equality between the sexes for the limited purpose of invalidating necessary and beneficial single-sex protective laws as a violation of the even more abstract “ freedom of contract.” In the 1920 s, most organizations speaking for women workers—trade union women and reformers—went for the protection. TTie cost of this strategy can be seen in Radice v. New York just one year later.18 The Court upheld a New York criminal statute prohibiting the employment of women in restaurants between 10 P.M. and 6 A.M., thus excluding many women workers from night work. The night work prohibition was deemed a valid protective measure because the state legislature had a mass of information showing that night work was harmful to the health o f women. The Court deferred to the legislature’s judgment that the harmful effects of night work bore more heavily against women than men because women were more “ delicate.” Radice is a clear-cut instance of sex discrimination in the guise of protection. The element which unites all the cases in this period is the treatment o f women workers as a class in need o f special protection. It was not unreasonable for protective labor law advocates to use this tack. It could work to the benefit of women and men, as the Bunting decision proved. It was also not entirely unreasonable, given the sex segregation of the labor force, to view women workers in those years as a class apart from men. What was unreasonable was the intellectual basis put forth to justify treatment of women workers as a separate class. Women were said to be physically weaker, burdened by the responsibilities of motherhood and therefore dependent on men for their protection. Anatomy, for women, spelled economic dependency—not just for some women, but for all women. This, despite the fact that the vast majority of working women were the sole support of themselves or their children or families. In the period when protective legislation was first propounded, even the staunchest advocates of laws for the protection of women only recognized that men also needed protection and that, in the end, the goal was regulation of industry for the protection of all workers. As Felix Frankfurter put it:

Once we cease to look upon the regulation of women in industry as excep­ tional, as the law’s graciousness to a disabled class, and shift the emphasis from the fact that they are women to the fact that it is industry and the rela­ tion of industry to the community which is regulated, the whole problem is seen from a totally different aspect.19 Frankfurther also stated that “ science has demonstrated that

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^ere is no sharp difference in kind as to the effect of labor on men and women.” 20 Yet, he still insisted there was a difference in decree, that both men and women need protection, but for apparently different reasons. But whether a jurist recognized a difference in kind or in degree between women’s and men’s needs for job protection, the result would be the same. Women were lumped right back into that “ class by themselves” where by “nature,” with a little help from the law in Muller, they belonged. PROTECTION FOR EVERYONEEXIGENCIES OF DEPRESSION AND WAR: 1935-1948

In the 1930s, the Great Depression forced millions of women and men out of work. In the 1940s, the demands of wartime industry and the exodus of men to the military allowed thousands of women to enter the industrial labor force. Until the Depression, most labor legislation had emanated from the states—all o f the protective labor laws challenged in the Muller era were state or local statutes. The national scope of unemployment in the Depression, however, called for a national policy on employment and labor relations. The federal government did not preempt the field o f labor law; but from 1932 onward, it was involved with the states in the passage o f social welfare legislation for workers. The major pieces of federal legislation in this period were the Social Security Act of 1935 and the Fair Labor Standards Act of 1938. The Fair Labor Standards Act incorporated the major types of state protective laws into a comprehensive labor law that applied to workers regardless of sex. It provided for minimum wages and maximum hours and increased compensation for overtime for those employees it covered (those engaged in the production of goods for interstate commerce). The Social Security Act established an entirely new kind o f protection for workers. Under this act the federal government set up a system for the future protection of workers and their families against job loss through infirmity, disability, and old age. Like the Fair Labor Standards Act, it covered all workers regardless of sex. Nonetheless, many o f its provisions discriminated against women by not providing them with the same protection afforded to men. The provisions of the Fair Labor Standards Act, however, did not treat women workers differently than their male counterparts. In providing for maximum hours and minimum wage limitations for men as well as women, Congress had clearly accepted the position that all industry—not just particularly hazardous or unhealthful employments—needed to be regulated for the general welfare.

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Congress succeeded in passing this law just one year after the Supreme Court had been asked to reconsider its ruling in Adkins. With the threat of a court-packing measure over its head, it reversed itself by upholding a state minimum wage law for women in West Coast Hotel Co. v. Parrish.21 The minimum wage law at issue in Parrish had been in effect in Washington State since 1913. It had withstood two state court challenges to its constitutionality. Thus, despite the adverse Adkins decision, proponents of protective labor laws for workers had kept the battle for minimum wage provisions alive until the time was right to return to the Supreme Court. (It is a testament to the strength of laissez-fair-advocates that in 1937 in the midst of massive unemployment and impoverishment, the Supreme Court could barely muster a five to four majority to uphold the state of Washington’s minimum wage law.) The majority in Parrish based its holding in part on the “ common knowledge” it had gained from the Depression of workers’ needs for protection: The exploitation of a class of workers who are in an unequal position with respect to bargaining power and are thus relatively defenseless against the denial of a living wage is not only detrimental to their health and well being, but places a direct burden for their support upon the community. What these workers lose in wages the taxpayers are called upon to pay. The bare cost of living must be met. We may take judicial notice of the unparalleled demands for relief which arose during the recent period of depression and still continue to an alarming extent despite the degree of economic recovery which has been achieved.22

This would seem to imply that a minimum wage for men as well as women was valid. Unfortunately, the Court turned aside from this implication by reinvoking the spirit of Muller. But the decision against a minimum wage in Adkins had to be faced, and Muller was used to dispose of it: With full recognition of the earnestness and vigor which characterize the prevailing opinion in the Adkins case, we find it impossible to reconcile that ruling with these well-considered declarations. What can be closer to the public interest than the health of women and their protection from unscrupulous and overreaching employers?23

Women were “ ready victims,” the lowest paid class of workers with the least bargaining power. Protecting them was a legitimate exercise of state power. What about the fact that men were in need of the same protection, and that this law, in covering only women, was sex discriminatory? The Court dismissed this argument as “ unavailing,” adopt-

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ing for a whole new generation of jurists the position that protective measures for women only were reasonable under the Due Process Clause of the Fourteenth Amendment. Along with this legal theory came the belief, supported by fact and fiction, that all women workers needed more and special protection than did all men workers: first, women workers as a class were more exploited; second, their health was a matter of public interest because o f their function as mothers. After Parrish, the pattern of the earlier Muller and Bunting cases was repeated. Once again the “ weaker” class, women, in gaining constitutional acceptance of their need for special protection, prepared the way for general acceptance of not-special protection for men workers. Four years after Parrish, the Supreme Court upheld the minimum wage provisions of the Fair Labor Standards Act, which were applicable to men and women alike.24 Thus the halfloaf/whole-loaf strategy worked well, winning approval of the newest and most potent protective measure—the minimum wage law— for all workers regardless of sex. Perhaps the language and reasoning were different, sometimes repugnant, when the Court ruled on a “ women’s case,” but in the long run did not all workers benefit from the strategy? The answer is no. And the best (or worst) support for this answer is the outrageous decision of the Supreme Court in Goesaert v. Cleary which upheld a Michigan “ protective” labor law for women in the bartending business. The concept of “ protection” in Goesaert is not one of improving work conditions for a class of workers, but rather of “ protecting” one class of workers (men) from competition from another class (women). Writing for the Court, Justice Felix Frankfurter, champion of protective labor legislation, upheld a Michigan law that prohibited all women from working as bartenders (except the wives and daughters of male bar owners). The words of Muller and Parrish were perversely used against the women in Goesaert, who sought the Court’s protection against a law whose sole purpose and effect was to keep them out of a high-paying, male-dominated profession. Michigan women had made some inroads into the profession during World War II; and after the war, Michigan men returned and wanted their bartending jobs back. Their male-dominated union and legislature paved the way with this “ protective” measure for women. Goesaert completely denied a woman’s right to employment. No decision before or after Goesaert is so clear on the point that a state may absolutely bar women from any given profession. Justice Frankfurter interpreted the Fourteenth Amendment, as did his brothers before and after, to permit sex classifications as , 2 5

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long as there was a rational basis—any rational basis—to support doing so. In Goesaert, he hypothesized a state interest in protecting the morals of women as the “ rational” basis for sex classification. The American labor force, from the start of the industrial age through the 1930s, was characterized by a high degree o f sex segregation by occupation. Only during World I did women make some significant but short-lived breakthroughs into male-dominated industries. Until World War II, however, women by and large did not compete with men for jobs. World War II, which called millions of men away from their jobs for several years, gave women their first opportunity on a large scale to penetrate men’s industries, such as the steel, automobile, and defense industries. Women also entered service occupations, like bartending, that had been dominated by men before the war. At the close of World War II, more women were in the labor force in more varied occupations than ever before. Although sex segregation still dominated the labor force, a significant number of men found themselves in occupations in which they had to compete with women for jobs. As they looked about for ways to win back their jobs, men were helped not only by federal veterans’ preference acts, but also by old and new state “ protective” laws for women. Such laws for women only, particularly the old maximum hours laws, weight restriction laws, and more recent premium overtime provisions, were enforced (often for the first time), to remove women from competition with men. They were turned upside down and applied to keep women out of jobs, rather than to protect them on the job. For example, in many factories promotions came to be based on the amount of overtime a worker put in. If a state had a maximum hours law for women, all women covered by the law were precluded from doing the overtime necessary to win promotions. Employers could claim they were simply obeying the protective law, in “ good faith,” when they promoted only men. They also could claim to be operating in good faith when they hired only men on the grounds that they needed people who could work overtime. Thus, female “ veterans” of World War II in many factories around the country worked for years after the war without promotion. Laws enacted for their protection were perversely used to keep them at the lowest level position in “ men’s industries.” Where the old laws did not do the entire job, states passed new laws like Michigan’s Goesaert provision.

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PRESSURES FOR EQUAL OPPORTUNITY: 1964-1971

Through most of the Eisenhower years the nation was in an economic recession, but in the early 1960s the labor force began to grow again. The largest growth came in the number and proportion of full-time women workers. By 1968, 37 percent of all workers were women. These new workers were considerably older than the women who had worked in the 1920s. While the average age of women workers in 1920 was twenty-five years, the average in 1970 was forty-five years. Women who entered the labor force in the 1950s and 1960s also stayed longer. Two-thirds worked out of dire necessity, either as the sole breadwinner or to help support a family with an annual income below $7 ,000.26 Although their economic needs were the same as those of men, women workers were rarely able to earn as much. At one point in the 1960s, women’s wages, on average, had climbed to 60 percent of men’s wages, but since then the gap has widened again. Spurred by women’s growing demands for wage parity and better job opportunities, Congress adopted two important pieces of “ protective” legislation. The Equal Pay Act of 1963 provided that women and men should get equal pay for the same or similar jobs. Furthermore, in situations in which men earned more than their female coworkers, employers could not lower the men’s salaries to meet the provisions of the new law; they had to raise women’s wages to the level of men’s. The Equal Pay Act was limited in its usefulness to integrated situations in which women worked side by side with men. Title VII of the Civil Rights Act of 1964 was a much more comprehensive fair employment law. It prohibited discrimination in employment on the basis of sex, race, color, religion, and national origin. Title VII also called for affirmative efforts by employers to provide equal employment opportunities to groups like blacks and women who had suffered from discrimination in the past. Title VII gave women a powerful legal tool to help dismantle the outdated network of state protective labor laws that too often were used against them to protect men’s jobs. It explicitly prohibited employers from classifying employees “ in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s . . . sex.” The strength and simplicity of its prohibition of both sex discrimination and sex segregation, however, were diluted by another provision of Title VII. The section, known as the bona fide occupational qualification (BFOQ) defense, reads: that it is not unlawful to hire on the basis of sex

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“in those certain instances where . . . sex, . . . is a bona fide occupa. tional qualification reasonably necessary to the normal operation of that particular business or enterprise.. . .” 27 It is important to note that there is no bona fide occupational qualification defense against race discrimination in Title VII. Title VII’s enforcement agency, the Equal Employment Opportunity Commission (EEOC) did make it clear that the BFOQ exception was to be narrowly construed. Today, in fact, many Title VII scholars think the BFOQ defense has been narrowed down into total disuse.28 But in the early days of Title VII interpretation, the EEOC, under a great deal of pressure from unions and employers alike, stated in its guidelines that certain state protective labor legislation for women only would be valid as a BFOQ exception. In 1969, the EEOC took the position that “ the Commission does not believe that Congress intended to disturb such laws and regulations which are intended to, and have the effect of, protecting women against exploitation and hazard. Accordingly, the Commission will consider qualifications set by such state laws or regulations to be bona fide occupational qualifications.” 29 This guideline appeared to be limited to laws that provided real, not sham, protection against “ exploitation and hazard.” But who was to determine which were real and which were sham, especially in light of the Supreme Court’s ruling in Goesaert, upholding a sham protective law as though it were real? Women workers themselves took on the task of challenging sham laws as violating Title VII. After some initial setbacks, they won a major part of the legal battle in two federal circuit court decisions, Weeks v. Southern Bell Telephone and Telegraph Company and Rosenfeld v. Southern Pacific Company.30 In Weeks, the plaintiff sought the job of “ switchman” in the phone company and was denied it on the pretext that it was “strenuous.” Southern Bell claimed that women were not able to perform the switchman job because it required weight lifting and strenuous physical exertion. Southern Bell could not contend that the state mandated that women should not do strenuous work because the one Georgia law prohibiting women workers from lifting over thirty pounds had just been superseded by an amendment that made this law sex-neutral. Consequently, the Weeks court held that Southern Bell had to prove that women actually could not do the job. The Court concluded that the telephone company failed to so prove: They introduced no evidence concerning the lifting abilities of women. Rather, they would have us “ assume,” on the basis of a “stereotyped characterization

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that few or no women can safely lift 30 pounds, while all men are treated as if they can. While one might accept, arguendo, that men are stronger on the average than women, it is riot clear that any conclusions about relative lifting ability would follow----- What does seem clear is that using these class stereotypes denies desirable positions to a great many women perfectly capable of performing the duties involved.31

Fully aware of women’s growing presence in the labor force and their demands for men’s jobs hitherto denied them, the Weeks court closed with a refreshing breath of reality: “ Men have always had the right to determine whether the incremental increase in remuneration for strenuous, dangerous, obnoxious, boring or unromantic tasks is worth the candle. The promise of Title VII is that women are now to be on equal footing.” 32 Thus, according to the Weeks court, Title VII would not tolerate the type of sex classification permitted by the Supreme Court in Goesaert in which it was used against individual women who were willing and able to do “men’s work.” Two years later, the Ninth Circuit Court of Appeals tackled headon the conflict between Title VII and protective labor laws for womThe plaintiff, Leah en in Rosenfeld v. Southern Pacific Company Rosenfeld, wanted to be an agent-telegrapher. Southern Pacific denied her the job on two grounds: first, that women were not physically or “ biologically” suited for such work; second, that giving the plaintiff the job would violate California’s maximum hours and weight restriction laws for women. In the interim between Weeks and R osenfeld , the EEOC formulated a new guideline on protective labor laws: , 3 3

The Commission believes that such state laws and regulations, although originally promulgated for the purpose of protecting females, have ceased to be relevant to our technology or to the expanding role of the female worker in our economy. The Commission has found that such laws and regulations do not take into account the capacities, preferences and abilities of individual females and tend to discriminate rather than protect. Accordingly, the Commission has concluded that such laws and regulations conflict with Title VII of the Civil Rights Act of 1964___ 34

The Rosenfeld court deferred to this interpretation of Title VII. It rejected Southern Pacific’s claim that protective laws provided a bona fide occupational qualification defense to the exclusion of Leah Rosenfeld and other women. As to the argument that women as a class were not suited for the work, the Rosenfeld court said that individual women, like individual men, had to be given the opportunity to show that they were physically qualified for a job:

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“ This alone accords with the Congressional purpose to eliminate subjective assumptions and traditional stereotyped conceptions regarding the physical ability of women to do particular work.”35 The Rosenfeld court clearly enunciated Title VII’s mandate that women workers be treated and judged as individuals, not lumped into a class by themselves—a class defined by assumptions and stereotypes of the generic woman. It was not as clear nor as helpful in hastening the demise of sham protective labor laws for women. In a very important aspect of the case, the court recognized that Southern Pacific had used a weight restriction law to keep women out of desirable jobs, but concluded nonetheless that the company had relied in good faith on the law and therefore owed Rosenfeld no damages for its discrimination. The court stated tersely that, “ an employer can hardly be faulted for following the explicit provisions of applicable state law.5’36 Consequently, to this day employers can continue to rely on protective labor laws, wherever they still exist, to exclude women from jobs. If caught, they are told to stop and the law is struck down; but the good faith reliance doctrine, as set forth in Rosenfe ld , has consistently been used to deny women any damages for the employer’s past discrimination.37 Without an effective deterrent such as large back pay awards, women workers must continually bring lawsuits to challenge their particular employers and their states’ particular “ protective” laws. The first Title VII case involving sex discrimination decided by the Supreme Court was Phillips v. Martin-Marietta.38 It did not involve the conflict between Title VII and protective laws for women. Instead, the plaintiff in Phillips claimed that she had been denied a job because she had preschool age children, while men with preschool age children were hired for the same job. The Supreme Court dealt with the issue of whether this differential treatment constituted sex discrimination under Title VII. The lower court in the case had said that while sex may have been a factor in the employer’s decision, it was not the only factor. The main reason for denying Phillips the job, the lower court had decided, was not that she was female, but that she had children for whom she had to care.39 Title VII, the lower court stated, did not prohibit discrimination based on sex plus another factor, a legitimate factor. There was no pure male-female discrimination; rather, there was discrimination between certain women workers, those with preschool age children, and all other workers, male and female. The Supreme Court did not agree with the lower court’s analysis and gave women workers a tentative but important victory in Phillips. It referred the case back to the lower federal court for

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“facts” on whether the burdens of motherhood were greater than the burdens of fatherhood in terms of employee absenteeism. But it stated that the policy, at first glance, of hiring men with preschool age children and not hiring women similarly situated appeared to violate Title VII. For that reason the Court placed the burden on the employer to defend its policy either as a business necessity or as a legitimate BFOQ exception. Protection was not a visible issue in Phillips. But the same general assumptions about women that sustained protective measures for women over the years were at play. The first protective laws were passed so that women workers would be strong enough to become mothers with healthy children; the plaintiff in Phillips was a mother of young children. Left unspoken was the further assumption that, with motherhood, a woman should leave the work force for her “rightful place” in the home. While many women did leave the labor force when they became mothers, or even earlier when they learned of their pregnancies, many others could not afford to leave their jobs for motherhood or any other reason. Ida Phillips was working as a waitress on the all-night shift when she applied for the much higher-paying daytime position with Martin-Marietta. The day job would have given her the chance to be with her children before school and in the evenings, and it would have given Phillips and her children much better protection in terms o f job security, medical coverage, and pension benefits. Yet she was denied this employment opportunity in the name of motherhood and her responsibilities to her children. THE FIGHT FOR EQUAL PROTECTION IN THE SEVENTIES

For the past five years working women have kept the Supreme Court very busy by challenging laws and policies that deny them the same employment rights as men and equal protection on the job with men. There are two major lines of cases, the pregnancy cases and the dependency cases, that have evolved in this short period. In the pregnancy cases, women plaintiffs put forth arguments supporting their fundamental right to employment and, as part of that right, the right to equal benefits with their male coworkers. The first of these cases, Cleveland Board o f Education v. LaFleur ,40 challenged the compulsory maternity leave policy of the Cleveland Board of Education which forced women teachers who became pregnant to leave their jobs at the end of their fifth month of pregnancy. LaFleur was the first case at the Supreme Court level to isolate one of many long-standing policies used to get women

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out of the work force once the “ burdens of motherhood” approached. As I have noted, pregnancy and motherhood were rationales as far back as Muller for giving women more protection than men. Such protection, like maximum hours laws, was designed to keep women healthy until they left their jobs for their real function in life, motherhood. Employers, legislators, and judges had assumed for years that working women, at the point of pregnancy, would voluntarily leave the labor force. When women did not conform to this assumption, employers such as the Cleveland Board of Education wrote policies to force them to leave. Compulsory maternity leaves were in fact terminations, but because of men’s assumptions about pregnancy, they were called “ personal leaves” rather than medical or sick leave; and women were generally not only terminated but, because they were no longer considered employees, were also denied medical and pregnancy disability benefits. When LaFleur was argued before the Supreme Court, all states had a series o f laws and policies that were adopted to force women out of the work force on the grounds of pregnancy and to keep them out—well beyond the period of convalescence following childbirth. These laws ranged from the LaFleur-type compulsory maternity leave to the denial of unemployment compensation to pregnant women workers to requirements that women with children, in order to collect unemployment insurance, show proof of their childcare arrangements. LaFleur was the first case before the Supreme Court to challenge this pervasive and systematic discrimination on the grounds of pregnancy as a denial of equal protection to women workers. Justice Stewart, writing the opinion for the Court, did not follow the lower court’s lead and treat the case as an employment discrimination case. Nor did he agree with the lower court that women were denied equal protection with respect to their employment rights. Instead, he struck down the policy on forced maternity leave as an arbitrary and unreasonable interference with a woman’s personal right to privacy in matters o f childbearing:

This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.. . . By acting to penalize the pregnant teacher for deciding to bear a child, overly restrictive maternity leave regulations can constitute a heavy burden on the exercise of these protected freedoms.41

Justice Stewart totally ignored the equal protection issue raised by the plaintiff and adopted by the lower court, that the forced

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leave policy was sex discriminatory. Stewart’s decision clearly demonstrates that the Court could not get beyond its assumption that pregnancy is a personal matter, not an employment concern as well. The Court made no acknowledgment of a woman’s right to work, pregnant or otherwise. In fact, it found fault with the forced leave policy only on the grounds that it was so restrictive; it unduly penalized women for getting pregnant. Thus the door was still left open for less restrictive forced leave policies. LaFleur also left the door open for other forms of discrimination against women in the name of pregnancy. Employers who terminated women on the grounds of pregnancy also excluded them from medical and disability coverage. The reasoning was clear: once a pregnant woman was forced to leave work, the employer had no more responsibility to her because the employer intended and expected that her leave be permanent. The reality, however, was different. Even though women were forced to leave at some point in pregnancy, they expected to return to work, if only to pay off the medical expenses of pregnancy and childbirth. The reality was that women needed to work as much as men, and for the same economic reasons. Women plaintiffs placed this reality before the Supreme Court in Geduldig v. Aiello and General Electric Co . v. Gilbert.42 The policy challenged in Aiello and Gilbert was that of excluding disabilities related to pregnancy and childbirth from health and disability insurance plans. In A iello , women employees challenged such a plan as unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. The Supreme Court, evoking the spirit of Goesaert, held that a plan was rational that covered all disabilities known to man except disabilities related to childbirth (which, of course, are known to man, but only experienced by women). But the Aiello decision went one important step beyond Goesaert's finding that sex discrimination was rational so long as the Court could find any basis for the gender-related classification. The Aiello court insisted there was no sex discrimination in pregnancy discrimination: [T] he California insurance program does not exclude anyone from benefit eligibility because of gender but merely removes one physical condition— pregnancy—from the list of compensable disabilities. While it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification.. . ,43

This reasoning was based on the “ sex-plus” doctrine which the Supreme Court ostensibly rejected in Phillips. The logic of the lower federal court in Phillips was that it was nondiscriminatory to deny a woman a job because of her sex plus the fact that she

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had small children. Similarly, the Supreme Court in A iello argued that it was nondiscriminatory to deny a woman job protection in the form of disability payments because o f her sex plus the fact that she was pregnant. While it is true that not all women workers are pregnant, as the Court in Aiello (and later in Gilbert) so percep. tively noted, it is also true that not all women workers have preschool age children. The Supreme Court, however, failed to see the conflict between its reasoning in Aiello and its decision in Phillips. In General Electric Co.

v. Gilbert, the Court reviewed a disability income insurance plan under Title VII. The decision in Gilbert is the best example of intellectual dishonesty masquerading as adherence to “ established constitutional principles” since Lochner (Goesaert runs a close second). Gilbert cannot be analyzed in a logical way because it defies logic. The Supreme Court majority in Gilbert , for instance, claimed that because “ discrimination” was nowhere defined in Title VII, the Court must look to the Fourteenth Amendment and cases decided thereunder for the definition of “ sex discrimination.” The Court could have looked to Weeks or to its own opinion in Phillips—in short, to the whole line of sex discrimination cases decided under Title VII, but it did not. It could have looked to the guidelines of the EEOC, Title VIPs enforcement agency, for its definition of discrimination, but it did not. In sum, as a dissenting justice pointed out in his opinion, the majority created a conceptual framework that made inevitable its conclusion that the exclusion of pregnancy-related disabilities from comprehensive disability plans did not violate Title VIPs prohibition against sex discrimination. In these three cases, LaFleur , Aiello and Gilbert , women workers asked the Supreme Court to provide them with a measure of real protection on the job—protection against job loss, loss o f income, and other economic hardship during a period o f temporary disability after childbirth. Unlike their sisters in Muller , they were not asking for special protection or for more protection than men. They were, indeed, asking for protection that would have cost employers some money, but as men workers have learned, most real protection does cost money. While the Court in LaFleur was ready to allow women to continue working beyond the fifth month of pregnancy, it was not ready to shed the notion that pregnancy and childbirth are personal concerns for individual women rather than a legitimate employment concern which all employers of women must take into account. One gets the distinct impression that the Court saw a man in the background in every case, with an income and health insurance to cover his working wife’s expen-

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ses during her childbearing leave. While that may have been the ideal o f the Court, it is not the real situation (or the ideal one) for most women. Women workers have fared much better to date in the dependency cases. These cases have had the common theme that women were presumed to be dependent on men for their support, while men were presumed not to be dependent on women for their support. Here again, the theme was as old as Muller, and it has had some basis in fact, given the pervasive discrimination against women in employment that results in the segregation of women into low-paying clerical and service jobs, and the large gap between women’s and men’s earnings. But the factual basis could also be used to conjure up time-worn fictions about women. In Kahn v. Shevin,*4 for example, the “ poor old widow lady” was revived to sustain a magnanimous $500 tax exemption for widows (but not for widowers) in Florida on the grounds that the legislature might have intended that the exemption be one-way to eliminate the effects of past discrimination against women. Such reasoning would have been most welcome in Aiello and Gilbert in which the protection sought was real. But in Kahn v. Shevin, in which the protection was minimal, it was another variation on the Goesaert theme that sex classifications will be upheld, no matter how discriminatory, so long as a Court can find some basis in reason, no matter how hypothetical. In contrast, the Court’s decisions in Frontiero v. Richardson, Weinberger v. Wiesenfeld, and Califa.no v. Goldfarb45 took account of actualities in working women’s lives. In all three cases, the Court treated women as individuals entitled to the same protection as men; and furthermore, it recognized that their contributions to their family’s support were as significant as the contributions o f men. In Frontiero, a four-judge plurality held that sex should be treated as a suspect classification just like race under the Fourteenth Amendment. The Court struck down a military provision that required women, but not men, to prove that their spouses were actually dependent on them in order to get a dependency allowance added to their salary. Both Wiesenfeld and Goldfarb involved provisions of the Social Security Act of 1935 that denied husbands of deceased women workers the same survivors’ benefits granted to wives of deceased male workers. Wiesenfeld's provision was an absolute denial, while Goldfarb's required proof of actual dependency similar to that required by the military provision in Frontiero. Both were based on the “ generally accepted presumption that a man is responsible for the support of his wife and children” 46 while a woman is not re-

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sponsible for her husband. Justice Brennan dealt with these genera] presumptions about men and women with a directness that is encouraging: Obviously, the notion that men are more likely than women to be the primajy supporters of their spouses and children is not entirely without empirical sup. p o rt.. . . But such a gender-based generalization cannot suffice to justify the denigration of the efforts of women who do work and whose earnings contribute significantly to their families’ support.47

The difference between the Wiesenfeld decision and A iello can certainly be expressed in legal terms. The major difference in constitutional interpretation is that Wiesenfeld treated sex discrimination as race discrimination under the Fourteenth Amendment and Aiello did not. The Court that does not treat sex discrimination as invidious and that uses irrational arguments to deny its very existence is still operating with a Muller mentality about women workers. Thus, the Court in Aiello and Gilbert continued to treat women as fit subjects for different treatment and regulation by employers and state legislatures alike, without inquiry into the motives and effects o f such differential treatment and regulation. In contrast, the Court in Frontiero , Wiesenfeld, and Goldfarb treated women as they would treat men, as individuals entitled to equal treatment in employment, as in every other field of endeavor. The two lines of cases cannot be reconciled. The Aiello-Gilbert Court still saw women as “ the problem,” while the Wiesenfeld Court finally viewed the issue as the regulation of employers for the protection and benefit o f all workers equally. CONCLUSION

Sixteen-hour days have given way to eight-hour days, but workers still need protection. The movement for protective labor legislation never encompassed some of the most exploited workers. Groups like farmworkers and household workers, mainly black and Hispanic, are still fighting for maximum hours, a minimum wage, and basic fringe benefits. The most exploited workers have never been all male or all female, although they have usually been racial and ethnic minorities. Just as the law lets both rich and poor sleep under bridges at night, it lets both women and men be exploited by their employers. But just as more of the poor sleep under bridges than the rich, more women have been treated worse by their employers than have men. What is wrong, then, with adopting a protective law to cover all women on the basis that many women actually need the protection?

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What is wrong, I contend, is that some women do not need the protection, and that many men who do need the protection are left out. Above all, as the historic practice of courts and employers shows, sex-defined protective laws too easily become a basis for exclusion. Protection of workers along sex lines, while politically necessary in the past, is at this point harmful to both the movement for protection and the movement for equality for all workers. Neither women nor men can afford to be in a class by themselves when a real need exists for protection on a particular job. If, for example, lead poses a health hazard to women of childbearing age, protective measures should be aimed at eliminating the hazard, not at removing all women as a class from jobs involving lead. Furthermore, hazards to men of childbearing age should not be overlooked by employers who express zealous concern for their women employees’ health. Perhaps the danger is to the reproductive system of both women and men and the employer will have to spend money to eliminate the danger, rather than to “ over-protect” women out o f their jobs and “ under-protect” men on the job. For women, class protection has been more often a curse than a blessing. In order to support class legislation protecting women, courts have consistently gone far beyond legal theories to rely on “widespread beliefs” (Muller) and “ common knowledge” (Parrish) about the generic Woman. They have spun a web of myihs about all women—all women are weaker than men, all women are dependent on men, all women will leave the labor force and become mothers. And this web has too often ensnared women workers and held them back from their goal of equality with men in the labor force. All women are entitled to equal employment opportunity and equal protection on the job, but the way to achieve this is not through class legislation that singles out women for some sort of “ special” treatment. Rather, the way to achieve equality is to recognize that women are in the labor force to stay; that their needs are the needs of all workers; and that policies or laws—or disability insurance plans—that do not take this into account deny them their right to equal protection in employment. Women do not want to be “special” ; they want to be equal.

NOTES This paper integrates parts of an earlier paper written by the author, entitled “Protective Labor Legislation for Women: Its Origin and Effect.” The integration and extensive editing of the two papers were done by Christine StanselL The editors of Feminist Studies and the author wish to thank Chris for her careful and valuable work. The research, theories and conclusions are those of the author alone.

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1See the 1970 debate on the Equal Rights Amendment on the floor of the House of Representatives for a presentation of the controversy over protective labor legislation. 116 Congressional Record 137 (91st Congress, 2nd Session), pp. H-7947-H -7985 (August 10,1970). 2For a detailed historical account of the weaknesses inherent in protective legislation see Elizabeth Baker, Protective Labor Legislation (New York: Columbia University Press, 1925), pp. 278-350. See also, Barbara Babcock et al., Sex Discrimination and the Law (Boston: Little, Brown, 1975). 3Bradwell v. the State, 16 Wall. 130, 141 ( 1 8 7 2 Ex Parte Lockwood, 156 U.S. Hg (1893). 4 120 Mass. 383 (1876). 5169 U.S. 366 (1898). 6198 U.S. 45 (1905). 7Ibid., p. 57. 8Ibid., p. 59. 9People v. Williams, 189 N.Y. 131 (1907). 10MuUer v. Oregon, 208 U.S. 412 (1908). 11Ibid., pp. 420-22. 12243 U.S. 426 (1917). 13261 U.S. 525 (1923). 14Note also that the two decisions (in Bunting and Muller) do not view men and women in exactly the same way: in Bunting the court was concerned that overworked men would not be good citizenst while in Muller the court was concerned that overworked women would not be good mothers and wives. 15Ibid., pp. 552-53. 16Ibid. 17Ibid., pp. 569-70. 18264 U.S. 292 (1924). l9“Hours of Labor and Realism in Constitutional Law,” 29 Harvard Law Review 353 (February 1916): 367. 50Ibid. 21300 U.S. 379 (1937). 22Ibid., p. 399. ^Ibid., p. 398. *U .S. v. Darby, 312 U.S. 100 (1941). U.S. 464 (1948). 26The labor statistics which I cite in this paper are derived from publications of the Women’s Bureau and the Bureau of Labor Statistics of the U.S. Department of Labor. Most of the same statistics are cited in Babcock et aL, pp. 191-229. ” 42 U.S.C 2000e-2(e)(1). 28 See, for example, Kathleen Lucas-Wallace, “Women’s Employment and Suspected Health Hazards” (paper delivered at Smith College Conference on Protective Legislation and Women’s Jobs, November 3-5, 1977), pp. 6-7, where the author indicates that the “critical” Title VII defense at this point is business necessity. ^Section 1604.1(3) of Guidelines of Equal Employment Opportunity Commission, 29 C.F.R. 1604.1(3). ^Weeks v. Southern Bell Telephone and Telegraph Company, 408 F. 2d 228 (5th Cir. 1969); Rosenfeld v. Southern Pacific Company, 444 F. 2d 1219 (9th Cir. 1971). 31408 F. 2d 228, p. 235 (5th Cir. 1969). 32Ibid., p. 236. 33444 F. 2d 1219 (9th Cir. 1971). * 2 9 C.F.R. 1604.1(b) (August 19,1969). 3S444 F. 2d 1219, p. 1225.

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36Ibid., p. 1227.

37Cf. Roxanne Barton Conlin, “Equal Protection Versus Equal Rights Amendment$here Are We Now?** Drake University Law Review 24, no. 1 (Winter 1975): 294-300. Conlin reviews all the states in which protective laws for women are still on the books, in some cases even after they have been held unconstitutional by the courts. See also Charles E. Guerrier, “State Protective Legislation: Good Faith Compliance or Convenient Discrimination,” Employee Relations Law Journal 1, no. 3. Guerrier presents cogent arguments for awarding damages to Title VII plaintiffs in cases in which employers have claimed to rely “in good faith” on protective labor laws in discriminating against women workers. 38400 U.S. 542 (1971). 39Phillips v. Martin Marietta Corp., 416 F. 2d 1257 (5th Cir. 1969). 40414 U.S. 632 (1974). 41Ibid., pp. 639-40. 42Geduldig v. Aiello, 417 U.S. 484 (1974); General Electric Co. v. Gilbert, 97 S.Ct 401 (1976). *417 U.S. 484, pp. 496-97. ^4 1 6 U.S. 351 (1974). 45Frontiero v. Richardson, 411 U.S. 677 (1973); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975); Califano v. Goldfarb, 430 U.S. 199 (1977). 46420 U.S. 636, p. 644. 47Ibid., p. 645.

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generalization that World War I killed the progressive movement, or that the crusade to make the world safe for democracy absorbed the reforming zeal of the progressive era and compounded the disillusionment that followed. “Participation in the war put an end to the Progressive movement,” Richard Hofstadter announced. “Reform stopped dead,” Eric Goldman decided.1 It is now obvious that the relationship between social reform and World War I is more complex. Henry May has demonstrated that some of the progressive idealism had cracked and begun to crumble even before 1917,2 while Arthur Link and Clarke Chambers have discovered that a great deal of progressivism survived into the 1920s.3 At the same time several historians have shown that for the intellectuals # This artide was read in abbreviated form at the American Historical Association Convention, San Francisco, December 29, 1965. The research was supported by grants from the American Philosophical Society and the Research Council of the University of Missouri. 1 Richard Hofstadter, The Age of Reform: From Bryan to FJD.R. (New York, 1955), p. 273; Eric Goldman, Rendezvous with Destiny (New York, 1952), p. 254. See also William E. Leuchtenburg, “Progressivism and Imperialism: The Progressive Movement and American Foreign Policy, 1898-1916,” Mississippi Valley Historical Review, X X X IX (Dec. 1952), 483-504; Leuchtenburg, The Perils of Prosperity, 1914-1932 in The Chicago History of American Civilization, Daniel Boorstin, ed. (Chicago, 1958), pp. 120-39; George E. Mowry, “The First World War and American Democracy,” in Jesse D. Clarkson and Thomas Cochran, eds. War As a Social Institution (New York, 1941), p. 182. 2 Henry F. May, The End of American Innocence: A Study of the First Years of Our Time, 1912-1917 (New York, 1959). 8 Arthur S. Link, “What Happened to the Progressive Movement in the 1920’s?” American Historical Review, LXIV (July 1959), 933-51; Clarke A. Chambers, Seedtime of Reform: American Social Service and Social Action, 1918-1933 (Minneapolis, 1963).

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associated with the New Republic the war seemed something of a climax to the New Nationalism.4 And William Leuchtenburg has argued that the economic and social planning of World War I was a much more important model for the New Deal than anything that happened during the progressive era.5 It is an overworked truism that there were many progressive movements, but one of the most important and interesting was the sodal justice movement.6 Led by social workers, ministers and intellectuals, the social justice movement, in broadest terms, sought to conserve human resources and to humanize the industrial city. The social justice reformers tried to improve housing, abolish child labor, limit the hours of work for both men and women, build parks and playgrounds and better schools. Like all progressives they believed that by altering the environment it was possible to reconstruct society. They combined optimism and a large amount of moral idealism with an exaggerated faith in statistics, efficiency and organization.7 Of course the social justice reformers did not always agree among themselves; prohibition, immigration restriction and the war itself caused divisions within the group. The optimism and the idealism of the social justice reformers had been tempered before 1917. In a real sense the formation of the Progressive Party with its platform of industrial minimums had seemed the climax to their crusade.8 The collapse of the Progressive Party coming almost simultaneously with the outbreak of war in Europe led to shock and disillusionment and to many pronouncements that the war had 4 Charles Forcey, The Crossroads of Liberalism: Croly, Weyl, Lippmann and the Progressive Era, 1900-1925 (New York, 1961), pp. 221 ff; Christopher Lasch, T he New Radicalism in America, 1889-1963: The Intellectual as Social Type (New York, 1965), pp. 181-224; Charles Hirschfeld, “Nationalist Progressivism and World War I,” MidAmerica, XLV (July 1963), 139-56. See also Walter I. Trattner, “Progressivism and World War I: A Re-Appraisal,” Mid-America, XLIV (July 1962), 131-45. 5 William E. Leuchtenburg, “The New Deal and the Analogue of War/* in John Braeman, Robert H. Bremner, Everett Walters, eds. Change and Continuity in Twentieth Century America (Columbus, Ohio, 1964), pp. 81-143. 6 See Arthur Link, American Epoch: A History of the United States Since the 1890*$ (New York, 1955), pp. 68-91, for what seems to me a sensible attempt to define the various progressive movements. The social justice movement was perhaps best represented by organizations like The Consumers* League, The Women’s Trade Union League, The American Association for Labor Legislation, the social settlements, and by The Survey magazine. A recent book, Irwin Yellowitz, Labor and the Progressive Movement in New York State 1897-1916 (Ithaca, 1965), defines a similar group as “social progressives/* 7 For one aspect of the efficiency side of progressivism see Samuel Haber, Efficiency and Uplift: Scientific Management in the Progressive Era, 1890-1920 (Chicago, 1964). 8 See Allen F. Davis, “The Social Workers and the Progressive Party, 1912-1916,** American Historical Review, L X IX (Apr. 1964), 671-88.

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ended social reform.9 The shock wore off quickly, though some of the disillusionment remained. Many reformers continued to promote social welfare legislation. They lobbied for the La Follette Seaman's bill, and early in 1916 helped to force a reluctant Wilson into supporting a national child labor law. Most of the social justice reformers voted for Wilson in 1916 but without a great deal of enthusiasm.10 The specter of war hung over them as it hung over all Americans, but for many of them the acceptance or rejection of war was an especially difficult, and in some cases, a shattering experience. A few, like Jane Addams, Lillian Wald and Alice Hamilton, were consistent pacifists. Most of them opposed the preparedness movement and America's entry into the war, and they played important roles in organizations like the American Union Against Militarism. But when the United States declared war most of them went along with the decision, with fear and trembling but with loyalty.11 They feared that the crisis of war would cancel the victories they had won, that civil liberties would be abridged, that education and recreation and health standards would be neglected, that child labor and long hours for men and women would be resumed in the name of national need.12 Yet gradually, to their own surprise, many of them came to view the war, despite its horror and its dangers, as a climax and culmination of their movement for social justice in America. Few of the reformers saw the war as a great crusade to make the world 9 John Haynes Holmes, “War and the Social Movement,” Survey, X X X II (Sept. 26, 1914), 629-30. Lillian Wald, for example, remarked, “War is the doom of all that has taken years of peace to build up,” quoted in Robert L. Duffus, Lillian Wald: Neighbor and Crusader (New York, 1938) , p. 148. 10 Arthur Link, Wilson: The New Freedom (Princeton, 1956), pp. 255-59. Wilson: Campaigns for Progressivism and Peace (Princeton, 1965), pp. 39-40, 56-60, 124-25; Gregory Weinstein, The Ardent Eighties: Reminiscences of an Interesting Decade (New York, 1928), p. 112; “Why Wilson; A Statement by Social Workers,” Jane Addams to Paul Kellogg, Oct. 25, 1916; Kellogg to Addams, Oct. 28, 1916, Survey Associates Papers, Box 17, Social Welfare History Archives, University of Minnesota. 11 Donald Johnson, The Challenge to American Freedoms: World War I and The Rise of the American Civil Liberties Union (Lexington, Ky., 1963), pp. 1-25; Crystal Eastman to Paul Kellogg, n.d. (received June 15, 1917); Minutes of Henry Street Meeting Sept. 27, 1915, Paul Kellogg MSS, Social Welfare History Archives; Paul Kellogg, “The Fighting Issue,” Survey, XXXVII (Feb. 17, 1917), 572-277; “War Resolutions Adopted by the Settlements,” Survey, XXXVIII (June 16, 1917), 265; Ray H. Abrams, Preachers Present Arms: A Study of the War-Time Attitudes and Activities of the Churches and the Clergy in the United States, 1914-1918 (Philadelphia, 1933). Of course a sizable minority of social justice reformers continued to oppose war after April 1917. 12 Arthur P. Kellogg, “The National Conference of Social Work,” Survey, XXXVIII (June 16, 1917), 253-55; Alice Henry to William Allen White, William Allen White MSS, Box 47, Library of Congress; Edward T . Devine, “Social Problems of the War,” Proceedings of the National Conference of Social Work, 1917, pp. 44-52.

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safe for democracy, at least in the beginning, but they were soon caught up in the feverish activity and enthusiasm for action that marked the first months of the war. Part of the excitement came from the thrill of being listened to after years of frustration, of plotting and planning and lobbying. “Enthusiasm for social service is epidemic . . Edward T . Devine, the General Secretary of the New York Charity Organization Society, wrote in the summer of 1917, “a luxuriant crop of new agencies is springing up. We scurry back and forth to the national capital; we stock offices with typewriters and new letterheads; we telephone feverishly, regardless of expense, and resort to all the devices of efficient ‘publicity work*. . . . It is all very exhilarating, stimulating, intoxicating.”13 The reformers went to Washington; they also joined the Red Cross or the YMCA and went to France. For a time during the war the capital of American social work and philanthropy seemed to have been transferred from New York to Paris. Devine, who in 1918 was in Paris working for the Red Cross, wrote: We have moved our offices to 12 Boissy d'Anglas, the Children's Bureau is on the ground floor; the Tuberculosis Bureau with the Rockefeller Foundation was already on the third . . ., the rest of the Department of Civil Affairs is on the first floor, Bureau Chiefs and Associate Chiefs being marshalled along the street side in an imposing array, with Mr. [Homer] Folks and Mr. [John] Kingsbury at one end and Miss Curtis and myself at the other.14 John Andrews, Secretary of the American Association for Labor Legislation, surveyed the new kind of administrator being employed by the government, many of them social workers and college professors, and decided that “Perhaps aggressive competition with Germany is having a beneficial effect on bureaucratic Washington.” Andrews had gone to Washington in October 1917 to try to get the House to pass a bill, already approved by the Senate, providing workmen's compensation for longshoremen. With Congress ready to adjourn everyone assured him there was no chance for passage. But he went to see President Wilson, and the next day the bill passed the House under the unanimous consent rule. Andrews was amazed and found himself with a great stack of unused facts and statistics. “Usually before our bills are passed, we wear 13 Devine, “Social Forces in Wartime,” Survey, XXXV III (July 7, 1917), 316. 14 Devine to Paul Kellogg, Apr. 7, 1918, Survey Associates Papers, Box 22. See also John Kingsbury to Eria Rodakiewics, Dec. 22, 1917, Kingsbury MSS, Box 25, Library of Congress; Kellogg to Newton Baker, Aug. 1, 1917, Survey Associates Papers, Box 18.

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our facts threadbare/’ he remarked. “Perhaps this is not the most democratic way to secure urgently needed labor laws, but it is effective.”15 Not everyone of course shared the enthusiasm for war, nor the confidence that war would lead to great social gain. There was some truth in Randolph Bourne's charge that the intellectuals who saw so much good coming out of war were deceiving themselves and falling victim to the worst kind of chauvinism and rationalization. “It is almost demonical/' Helena Dudley, a Boston settlement worker, wrote to Jane Addams, “the sweep toward conscription and these enormous war loans which Wall Street is eager to heap on: and labor so passive and the socialists broken up, and the social workers lining up with the bankers/' Another woman reported from Seattle that there “the men who feel ‘the call to arms' and the women who feel ‘the call to knit' for the Red Cross are the men and women generally opposed to labor legislation and all progressive movements to increase the rights and well being of the many/'16 But these were minority views. Most of the social justice reformers joined John Dewey, Thorstein Veblen and the New Republic progressives and applauded the positive action of the Wilson administration in taking over the railroads, mobilizing industry and agriculture. They looked forward to sweeping economic reforms and contemplated the “social possibilities of war."17 “Laissez-faire is dead,” one of them wrote, “Long live social control: social control, not only to enable us to meet the rigorous demands of the war, but also as a foundation for the peace and brotherhood that is to come.”18 Some of them, inspired by the promise of the Russian 15 John Andrews to Paul Kellogg, Oct. 6, 1917, Survey Associates Papers, Box 17. 16 Randolph S. Bourne, “The War and the Intellectuals/* Seven Arts, II (June 1917) , 133-46; Helena Dudley to Jane Addams, Apr. 10, 1917, Addams MS, The Peace Collection, Swarthmore College, Swarthmore, Pa.; Theresa McMahon to Stuart Rice, May 17, 1917, enclosed in Rice to John Kingsbury, May 22, 1917, Kingsbury MSS, Box 34. 17 Arthur P. Kellogg, “The National Conference of Social Work,** Survey, XXXVIII (June 16, 1917), 253-58; Winthrop D. Lane, “The National Conference of Social Work/* Survey, X L (June 1, 1918), 251-57; John B. Andrews, “Labor Laws in the Crucible/* Survey, IX L (Feb. 16, 1918), 542-44. On wartime mobilization and its effect on progressives see esp.: Charles Hirschfeld, “Nationalist Progressivism and World War I/* Mid-America, XLV (July 1963), 139-56; Leuchtenburg, “The New Deal and the Analogue of War/* Change and Continuity, pp. 81-91. “The social possibilities of war/* is Dewey*s phrase, see Dewey, “What are We Fighting For?** Independent, XCIV (June 22, 1918), 480. See also Rexford G. Tugwell, “America's War-Time Socialism/* Nation, CXXIV (Apr. 6, 1927), 364-67; “The War as a Sociological Laboratory/* Nation, CVI (Mar. 7, 1918), 258-59. 18 Neva R. Deardorff, “The Demise of a Highly Respected Doctrine/* Survey, X X X IX (Jan. 12, 1918), 416.

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Revolution and wartime socialism in England, looked forward to a kind of “democratic collectivism.”19 But the social justice reformers were concerned with more than an extension of the New Nationalism, and their primary interest was not in economic planning. They wanted to continue their crusade for social justice.20 Nothing was more important to them than the rights of the workingman, and the working woman and child. More than most progressives they had supported the cause of organized labor,21 and they were cheered by the rights won by labor during the war. The National War Labor Policies Board, the United States Employment Service and other wartime agencies recognized collective bargaining, the minimum wage and the eight-hour day, improved conditions of work and reduced the exploitation of women and children in industry.22 “One of the paradoxes of the war is the stimulus it is giving to human conservation/' a writer in T h e Survey noted.23 The social justice reformers spent a large amount of time making sure labor standards were not weakened, and that women and children were not exploited during the war. Yet even the invalidation of the National Child Labor Law by the Supreme Court failed to dim> their enthusiasm. The National Child Labor Committee set to work to design another and better law, and Congress responded by passing a bill that levied a 10 per cent tax on products 19 “The Russian Instinct for Democracy,” Survey, X L (Apr. 27, 1918), 85-87; Arthur Gleason, “British Labor and the Issues of Reconstruction,” Survey, XL (Aug. 3, 1918), 496-504; Paul Kellogg to Charles Elliot, Apr. 13, 1918; Kellogg to John Fitch, June 17, 1918, Survey Associates Papers, Box 24. On reaction to the Russian Revolution see Christopher Lasch, American Liberals and the Russian Revolution (New York, 1962), although he finds no place in his rather artificial categories for the social justice reformers or the pacifists; also Lewis Feuer, “American Travelers to the Soviet Union, 1917-32: The Formation of a Component of New Deal Ideology,” American Quarterly, XIV (Summer 1962), 119-49. The story of the impact of the British Labor Movement on American reform is one that needs to be told. 20 The differences between the social justice reformers and the New Republic progressives are ones of emphasis and degree; on many issues they could agree. Men like Paul Kellogg, Edward Devine and John Andrews, women like Lillian Wald and Florence Kelley tended to be more concerned with the ends rather than the means and they spent very little time arguing about a theory of government. They also were usually more interested in child labor and urban housing than they were in regulating trusts and controlling railroads. 21 See Allen F. Davis, “The Women’s Trade Union League: Origins and Organization,” Labor History, V (Winter 1964), 3-17. 22 John Commons and Associates, History of Labor in the United States (4 vols.; New York, 1918-35), III, 200-5, 321-25, 341-45; “How Workingmen Fare at Washington,” Survey, X X X IX (Feb. 23, 1918), 575. 23 John A. Fitch, “Stretching the Pay Envelope: Some New Methods of Fixing Wages,” Survey, X X X IX (Jan. 12, 1918), 411.

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produced by children under fourteen.24 A Supreme Court decision did not seem very important when Secretary of War Newton Baker and other members of the Wilson administration were saying publicly: “We cannot afford, when we are losing boys in France to lose children in the United States at the same time . . ., we cannot afford when this nation is having a drain upon the life of its young manhood . . to have the life of women workers of the United States depressed.”25 The crisis of war also stimulated the movement to improve urban housing. The housing movement was central to the social justice movement and intertwined with all other reforms from child labor legislation to progressive education. Much of the prewar movement, led by men like Lawrence Veiller, was devoted to passing restrictive legislation, but the war brought the first experiment with public housing.26 Borrowing something from the English example and spurred to action by the crucial need for housing war workers, the Federal Government, operating through the United States Shipping Board and the Department of Labor, built or controlled dozens of housing projects during the war. For many who had been working to improve urban housing for decades the government experiments seemed like the climax to the movement. Lawrence Veiller himself drew up the “Standards for Permanent Industrial Housing Developments” that were followed by the government agencies. The result was that the projects were much better designed and safer than those built by commercial builders. In addition the architects of the developments, influenced by the English Garden City Movement and by the settlement ideal of neighborhood unity, experimented with row houses, curved streets, recreation and shopping areas. Thus the public housing experiment of World War I was clearly the product of the dty planning as well as of the housing movement of the progressive era.27 24 John B. Andrews, “Federal Government to Uphold Labor Standards,” Apr. 21, 1917, Survey Associates Papers, Box 17; Winthrop D. Lane, “Making the War Safe for Childhood,” Survey, X XX V III (Aug. 4, 1917), 381-91; Mary McDowell, “Mothers and Night Work,” Survey, X L I (Dec. 22, 1917), 335-36; “Federal Child Labor Law Invalid,” Survey, X L (June 8, 1918), 283; “Planning a New Child Labor Law,” Survey, X L (June 15, 1918), 323; “A New Anti-Child Labor Bill,” Survey, X L (Sept. 7, 1918), 642. 25 Quoted in Florence Kelley, “The W ar and Women Workers,” Survey, XXXIX (Mar. 9, 1918), 628-31. For complete address, see Survey Associates Papers, Box 18. It is significant that Baker was president of the National Consumers League in 1917. Josephus Daniels and Wilson himself made similar statements; see John B. Andrews, “Federal Government to Uphold Labor Standards,” Apr. 21, 1917, Survey Associates Papers, Box 17. 26 For the relation between housing and other movements in the progressive era see Roy Lubove, The Progressives and the Slums: Tenement House Reform in New York City, 1890-1917 (Pittsburgh, 1962). 27 Bruno Lasker, “The Housing of W ar Workers: Lessons from British E x p e r i e n c e

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The war also provided a climax to the social insurance movement* which had won very little support in the United States before 1910. Many states had passed workmen's compensation laws by 1917, but they were inadequate and filled with loopholes, and the philosophy of the movement was only gradually being accepted by many reformers, let alone the general public, when the United States became involved in World War I.28 Consequently the Military and Naval Insurance Act, which became law October 6, 1917, was hailed as a great victory by the leaders of the movement29 The act, which was drawn up by Judge Julian Mack with the aid of experts like Lee Frankel and Julia Lathrop, required each enlisted man to make an allotment to his family, which the government supplemented. It also provided compensation in case of death or disability, and re-education in case of crippling injury.30 The architects of the plan hoped that it would prevent the demands for pensions and bonuses that had followed every American war, but more important to those who had fought for social insurance was the fact that the government had assumed the extra hazard involved in military service and guaranteed a minimum standard of subsistence to the soldier's family. The act was slow to get into operation, indeed some families did not receive their allotments until after the Armistice. It also put a heavy burden on the Red Cross, which tried to advance the money to needy families, but at the time the act seemed to mark a victory for an important progressive measure.31 Health insurance had made even less progress in the United States before 1917 than had workmen's compensation, but a group of social workers in 1915 picked it as the next great reform. “Health Insurance— die next step in social progress," became their slogan. A few states had amended their workmen’s compensation laws to include industrial for Fulfillment of an Urgent Task/* Survey, X L I (Jan. 1918), 390-97; “Toward a Federal Housing Policy,” Survey, X X X IX (Feb. 16, 1918), 552; Eva W. White, “War Activities as They Have Affected Housing, Health and Recreation,” Proceedings of the National Conference of Social Work, 1919, pp. 498-500; Lubove, “Homes and A Few Well Placed Fruit Trees: An Object Lesson in Federal Housing,” Social Research, XXVII (Winter 1960), 469-86. 28 Robert H. Bremner, From the Depths: The Discovery of Poverty in the United States (New York, 1956), pp. 249-59; Yellowitz, Labor and the Progressive Movement, pp. 8-9. 29 Arthur Kellogg to John Andrews, Sept. 4, 1917, Box 17; Paul Kellogg to Newton Baker, June 21, 1917, Survey Associates Papers, Box 18; “Compensation for Invalids of the War,” Survey, XXXVIII (Sept. 22, 1917), 541-44; “Soldiers and Sailors Insurance Law,” Survey, XXXIX (Oct. 13, 1917), 39-40. 80 Julia C. Lathrop, “The Military and Naval Insurance Act,” Nation, CVI (Feb. 7, 1918), 157-58. 81 Frank Bruno, Trends in Social Work (New York, 1957), pp. 230-32; “The Red Cross Civilian Relief Plan,” Survey, XXXVIII (May 19, 1917) , 162.

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diseases, and New York, New Jersey, Massachusetts and a few other states were investigating the possibility of compulsory, contributory workmen’s health insurance when the war came.32 The war seemed to increase the need. The New Jersey commission on old age insurance, in urging the government to enact a health insurance law, declared that “health protection . . . has been raised by the war from a position deserving of humanitarian consideration to one demanding action if we are to survive as a nation.”33 But compulsory health insurance quickly aroused the opposition of the insurance companies and the medical profession, as well as of other groups who denounced it as “Prussianism.” Not even the reminder that most of the British troops were protected by government health insurance could stop the opposition.34 While health insurance fell victim to the war, or perhaps more accurately to a combination of circumstances, the movement to improve the nation's health was stimulated by the conflict. “War makes sanitation a common cause,” Alice Hamilton announced. “We suddenly discovered that health is not a personal matter, but a social obligation,” Owen Lovejoy remarked.35 Early fears that the war, by drawing doctors and nurses into the Army, would lead to a rise in infant mortality, tuberculosis and other diseases proved groundless as a variety of agencies, volunteers and the Federal Government rallied to the cause. Lillian Wald, who opposed American participation in the war, served on the Red Cross Advisory Committee, traveled frequently to Washington as a consultant on health matters, and labored long and hard to keep the district nurses in New York functioning at top efficiency even during the influenza epidemic at the end of the war.36 Part of the stimulus to the health movement during the war came from the massive attempt to control venereal disease, part came from shock, especially over the 32Bremner, From the Depths, pp. 258-59; Gurdon Ransom Miller, Social Insurance in the United States (Chicago, 1918), pp. 31-51; John B. Andrews, “Progress Toward Health Insurance/’ Proceedings NCSW, 1917, pp. 535-42. In 1917 the American Association for Labor Legislation had reprinted on its letterhead the statement of a Surgeon General in the U.S. Public Health Service: “Health Insurance is the Next Great Step in Social Legislation/* Andrews to Paul Kellogg, Jan. 19, 1917, Survey Associates Papers, Box 17. 83 "The Draft and Health Insurance/’ Survey, X X X IX (Mar. 2, 1918), 605. 34 “Health Insurance Argued at Albany,** Survey (Apr. 6, 1918), 18-19; Isaac M. Rubinow, The Quest for Security (New York, 1934), pp. 207-17. 35 Alice Hamilton and Gertrude Seymour, “The New Public Health/* Survey, XXXV III (Apr. 21, 1917), 59-62; Owen R. Lovejoy, “A W ar Program for Peace/* Proceedings NCSW, 1919, pp. 664-65. 36 Lillian Wald to Joseph Girdansky, July 7, 1917; Wald to Elizabeth Farrell, June 19, 1918, Lillian Wald MSS, New York Public Library.

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rejection of 29 per cent of those drafted as physically unfit for service.37 But it was more than shock. As one social worker expressed it: “far from arresting public health progress, the war has suddenly defined America’s public health problem. And the aroused public conscience has promptly enacted measures which a few months ago would have been tabled by leisurely officials and classed as visionary schemes. Into a year has been packed the progress of a decade/’38 Other reform movements seemed to make great strides during the war. The use of industrial education in rehabilitation work pleased the supporters of progressive education,39 while the mental hygiene movement approved the use of psychiatrists and psychiatric tests by the Army.40 The use of schools as community centers by the Council of National Defense led to the climax of the school social center movement, and the development of community councils and war chests stimulated community organization and led to acceptance of the federated fund drive.41 Women also profited from the war. Out of necessity they achieved a measure of equal rights. They entered hundreds of occupations formerly barred to them, and their presence led to the establishment of the Women in Industry Service and ultimately to the Women’s Bureau of the Department of Labor. “Wonderful as this hour is for democracy and labor—it is the first hour in history for the women of the world/’ Mrs. Raymond Robins, the President of the National Women's Trade Union League, announced in 1917. “This is the woman’s age! At last 37 Eva W. White, “War Activities as they Have Affected Housing, Health and Recreation,” Proceedings NCSW, 1919, pp. 496-502; Lovejoy, “A War Program for Peace/* Proceedings NCSW, 1919, p. 664. 38 Gertrude Seymour, “TTie Health of Soldier and Civilian: Some Aspects of the American Health Movement in Wartime/* Survey, X L (Apr. 27, 1918), 89-94. 39 P. P. Claxton, “Effect of the War on Schools/* National Municipal Review, VI (Sept. 1917), 571-72; “Government Policies Involving Schools in Wartime,** Survey, X X X IX (Mar. 9, 1918), 626-28; “Vocational Training will Be Necessary After the War/* Philadelphia Bulletin, Feb. 22, 1918, Clipping Eva W. White MSS, The Arthur and Elizabeth Schlesinger Library, Radcliffe College. 40 Newton Baker to Paul Kellogg, July 26, 1917, Survey Associates Papers, Box 18; “National Conference of Social Work/* Survey, X L (May 4, 1918), 130-31; Mark Haller, Eugenics: Hereditarian Attitudes in American Thought (New Brunswick, N. J., 1963), pp. 115, 128. The war helped hasten the acceptance and increased the prestige of psychiatry. 41 “School Centers and War Work,** Christian Science Monitor, Apr. 11, 1918, clipping Eva White MSS; Sidney Dillick, Community Organization for Neighborhood Development: Past and Present (New York, 1953), pp. 71-76; Roy Lubove, T he Professional Altruist: The Emergence of Social Work as A Career, pp. 178, 189-92. The war also increased the acceptance of social work as a profession, and led to the further development of psychiatric social work.

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after centuries of disabilities and discriminations, women are coming into the labor and festival of life on equal terms with men.”42 The war also seemed to accelerate the movement for woman suffrage. Eight additional states gave women the vote, at least on some issues, during 1917. Wilson, after years of opposition, came out in favor of women voting, and the House of Representatives passed a woman suffrage amendment in January 1918.43 The Negro and the immigrant often fell victim to racist hysteria during the war and did not gain as much as other groups. But the war seemed to hold hope even for the disadvantaged. Negroes were drafted and enlisted in the Army in great numbers and often served with distinction. All the training camps, recreation facilities and even the YMCA buildings were segregated, and there were many incidents of racial bitterness and a few of violence. Yet many of the social justice progressives, who had always been more sympathetic to the Negro's plight than had most reformers, hoped that the Negro's willingness to serve and what he learned in the Army would help lead to better conditions after the war. They were cheered by the appointment of Emmett J. Scott, Secretary of Tuskegee Institute, as Special Assistant to the Secretary of War, and by the emergence of a number of young leaders within the Negro community. “We may expect to see the walls of prejudice gradually crumble before the onslaught of common sense and racial progress,” a writer in T h e Crisis predicted.44 It was hard to forget the bloody battle of East St. Louis and the race riot in Houston for which thirteen Negro soldiers were executed. It was easy to dwell on a thousand incidents of prejudice and on the lynchings that continued during the war, but many agreed with William E. B. DuBois when he called in July 1918 for the Negro to close ranks, support the war effort and put aside special grievances. “Since the war began we have won: Recognition of our citizenship in the draft; One thousand Negro officers; Special representation in the War and Labor 42 Eleanor Flexner, Century of Struggle: The Woman’s Rights Movement in the United States (Cambridge, 1959), pp. 288-89; Pauline Goldmark, “Women Conductors/’ Survey, X L (June 29, 1918), 360; Chambers, Seedtime of Reform, pp. 9-10; Mrs. Raymond Robins, “President’s Report/* Proceedings, NW TU L, 1917, pp. v-x. 43 Flexner, Century of Struggle, pp. 290-93; “The War and Votes for Women/* New Republic, XVI (Oct. 10, 1918), 33-35; “War-Time Gains of the Suffragists/* Survey, XXXV III (Apr. 28, 1917), 97. 44 Quotation is from “The Turning of the Tide/* Crisis, XV (Dec. 1917), 77-80. See also Emmett J. Scott, T he American Negro in the World War (1919); “War-Camp Community Service/* Playground, X I (1917), 509-10. For the role of the social justice progressives in aiding the Negro, see Gilbert Osofsky, Harlem: The Making of a Ghetto, Negro New York, 1890-1930 (New York, 1966), pp. 53-67.

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Departments; Abolition of the color line in railway wages; Recognition as Red Cross Nurses; Overthrow of segregation ordinances; A strong word from the President against lynching. . . . Come fellow black men,” DuBois urged his critics, “fight for your rights, but for god's sake have sense enough to know when you are getting what you fight for.”45 The war did not end the grievances, but it seemed to improve the Negro's lot. It also stimulated a massive migration. A large number of Negroes had moved north even before 1914 but the war and the lure of jobs increased the flow. Many Negroes did find employment, but they also encountered prejudice and hate. Social workers and a few other reformers continued to struggle against increasing odds to aid the Negro. Yet during the war the problems and the prejudice seemed less important than the promise for the future. The migration north and the large numbers who joined the Army also seemed to create improved wages and better treatment for Negroes in the South. The story of the migration might be told in terms of crime and corruption, of drift and hate, a writer in Survey noted but “Against it, there is a story of careful adjustment to new circumstances, of stimulation to self-help, of education . . ., of job findings and vocational guidance. . . .”46 The story of the treatment of the immigrant and alien during the war was also not entirely bleak. German-Americans were attacked as radicals, pacifists and traitors, and wartime hysteria led to the development of super-patriotism and the decline of civil liberties. Yet at the time the patriotic enthusiasm seemed in some cases to accelerate the process of Americanization. The sight of many different ethnic groups joining enthusiastically to support Liberty Bond drives and other war activities led one observer to predict that the war would “weld the twenty-five or thirty races which compose our population into a strong, virile and intelligent people . . .,” into “a splendid race of new Americans.”47 The war also strengthened the movement to restrict immigration. In February 1917, a bill requiring a literacy test for the first time passed Congress and became law. There had always been disagreement among social justice progressives on the matter of restriction; some had argued that to help those already here it was necessary to reduce the flow, but the war seemed to end the debate. Not all reformers greeted

45 Du

Bois, “Editorial,” Crisis, XVI (July-Sept. 1918), 3, 217. 46 Quotation from “Negro Migration,” Survey, X X X IX (Dec. 22, 1917), 342-43, George Edmund Haynes, “Negroes Move North,” Survey, X L (May 4, 1918), 115-22. John Hope Franklin, From Slavery to Freedom : A History of American Negroes (2nd ed.; New York, 1961), pp. 444-68. 47 Alexander Whiteside, “Our New Americans and War Activities,” Survey, X L (June 15, 1918), 309-12.

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the new law as a victory for progressivism, but no one, not even the Immigrant Protective League, launched an effective protest against the bill. The National Committee for Constructive Immigration Legislation, formed in 1918, and supported by a great variety of reformers, tried only to soften and define the restrictive legislation.48 Despite occasional setbacks reform seemed to triumph in many areas during the war, but perhaps the most impressive victory came with the progressive take-over of the training camps. The Commission on Training Camp Activities was a product of the minds of Newton Baker and Raymond Fosdick. Baker, of course, had been a municipal reformer, and progressive mayor of Cleveland before becoming Secretary of War. Fosdick had been a settlement worker and Commissioner of Accounts in New York and an expert on American and European police systems49 As Chairman of the Commission Fosdick picked men like Joseph Lee of the Playground Association, Lee Hanner of the Russell Sage Foundation and John Mott of the YMCA to serve with him. With the aid of several other private agencies the Commission on Training Camps set out to apply the techniques of social work, recreation and community organization to the problem of mobilizing, entertaining and protecting the American serviceman at home and abroad. They organized community singing and baseball, post exchanges and theaters, and even provided university extension courses for the troops. They moved out into the communities near the military bases and in effect tried to create a massive settlement house around each army camp. No army had seen anything like it before, but it provided something of a climax to the recreation and community organization movement and a victory for those who had been arguing for creative use of leisure time, even as it angered most of the career army men.50 The Commission on Training Camp Activities also continued the progressive crusades against alcohol and prostitution. Clearly a part of the progressive movement, both crusades sought to preserve the nation's human resources, and were stimulated by a mixture of moral indigna-

48 John Higham, Strangers in the Land: Patterns of American Nativism, 1860-1925, pp. 202-3, 302-3; “For a Constructive Law on Immigration/* Survey, X X X IX (Feb. 23, 1918), 575; Sidney L. Gulick to E. A. Ross, May 8, 1918, E. A. Ross MSS, Wisconsin State Historical Society. Paul Kellogg to Grace Abbott, Feb. 15, 1917; Grace Abbott to Arthur Kellogg, Feb. 19, 1917, Survey Associates Papers, Box 17. 49 C. H. Cramer, Newton D, Baker: A Biography (Cleveland, 1961); Raymond D. Fosdick, Chronicle of a Generation: An Autobiography (New York, 1958). 50 Fosdick, Chronicle of a Generation, pp. 142-86; “The Recreation Movement in War Times/* Playground, XII (1918), 137-51; Eva White, Proceedings NCSW, 1919, pp. 496-502; Mark Sullivan, Our Times: The United States, 1900-25, V, Over Here, 1914-18 (New York, 1933) , pp. 330-47.

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tion and the latest medical knowledge. The prohibition movement had a long history, of course, but in its most recent upsurge it had been winning converts and legislative victories since the 1890s. The fight was led by the Anti-Saloon League and the Woman’s Christian Temperance Union, but was supported by many social workers and social justice reformers who saw prohibition as a method of improving social conditions in the cities. But many of them had refused to go all the way with the crusade against alcohol. In New York a group of settlement workers had agitated against the Sunday closing of saloons; they appreciated that the saloon served as a social center. The most successful municipal reformers, including Newton Baker in Cleveland, carefully avoided enforcing some of the liquor laws, realizing how easy it was to antagonize the urban masses.51 The war stimulated the movement and brought it to a climax; it also ended the lingering doubts among many reformers. It became patriotic to support prohibition in order to save the grain for food, and for the first time in 1917 the National Conference of Social Work came out in favor of prohibition.52 But it was more than patriotism, for temperance was one key to social advance. Edward T. Devine announced after returning from Russia in 1917 that “the social revolution which followed the prohibition of vodka was more profoundly important and more likely to be permanent than the political revolution which abolished autocracy.” Robert Woods, who had long supported prohibition, predicted in 1919 that the 18th amendment would reduce poverty, nearly wipe out prostitution and crime, improve labor organization and “substantially increase our national resources by setting free vast, suppressed human potentialities.”53 The progressive era also saw a major attack on prostitution, organized vice and the white slave trade, which seemed closely allied with the liquor traffic. Although the progressive vice reformer concentrated his attack on the madams and pimps and business interests which exploited the natural sex instincts of others, he also denied the time-honored defense of the prostitute, that it was necessary for the unmarried male 51 James H. Timberlake, Prohibition and the Progressive Movement, 1900-1920 (Cambridge, 1963), pp. 153-54; George C. Sikes, “The Liquor Question and Municipal Reform,” National Municipal Review, V (July 1916), 411-18; Gaylord White, “Legislation Opposed by New York Social Workers,” Commons, IX (Apr. 1904), 144-46. 52 Social Workers Stand for Prohibition,” Survey, X LI (Mar. 23, 1918), 687-88; Irving Fisher to E. A. Ross, Apr. 23, 1917, Ross MSS.; Elizabeth Tilton, “Prohibition for Preparedness,” Survey, XXXVIII (Apr. 14, 1917), 38. 53 Devine quoted by Arthur P. Kellogg, “The National Conference of Social Work,” Survey, XXXV III (June 16, 1917), 255; Robert A. Woods, “Prohibition and its Social Consequences,” Proceedings NCSW, 1919, pp. 763-64.

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to “sow his wild oats.” Using the latest medical statistics, he argued that continence was the best defense against the spread of venereal disease.5* Progressive attitudes toward alcohol and prostitution were written into sections twelve and thirteen of the Military Draft Act. They prohibited the sale of liquor to men in uniform and gave the President power to establish zones around all military camps where prostitution and alcohol would be outlawed. There was opposition from a few military commanders, a number of city officials and from at least one irate citizen who protested that red-light districts were “God-provided -means for prevention of the violation of innocent girls, by men who are exercising their ‘God-given passions/ ” 55 But Raymond Fosdick, with the full cooperation of the government, launched a major crusade to wipe out sin in the service; “Fit to Fight” became the motto. It was a typical progressive effort—a large amount of moral indignation combined with the use of the most scientific prophylaxis. Josephus Daniels, the Secretary of the Navy, disapproved of Fosdick’s methods. He believed that urging the men to avoid sexual contact was the best and only way to reduce disease; “Men must live straight if they would shoot straight,” he told the sailors on one occasion. But when the disease rate in the Navy became the highest in the service he gave in to Fosdick’s demand that science as well as moralism be used. The crusade was successful, for by the end of 1918 every major red-light district in the country had been closed, and the venereal disease rate had been lowered to produce what one man called, “the cleanest Army since Cromwell's day.”56 T o protect the health of the soldiers was not enough, however; “We must make these men stronger in every sense, more fit, morally, mentally and physically than they have ever been in their lives . . .,” one recreation worker announced. “These camps are national universities—training schools to which the flower of American youth is being sent.” When the boys go to France, “I want them to have invisible armour to take with them,” Newton Baker told a conference on War Camp Community

54 Roy Lubove, “The Progressive and the Prostitute,” Historian, XXIV (May 1962), 308-30; Jane Addams, A New Conscience and an Ancient Evil (New York, 1913); Robert Woods, “Prohibition and Social Hygiene,” Social Hygiene, V (Apr. 1919), 137-45. 55 Fosdick, Chronicle of a Generation, pp. 144-48; Newton Baker to Fosdick, Sept. 20, 1917, quoted in Frederick Palmer, Newton D. Baker: America at War (2 vols.; New York, 1931), I, 311. 56 Fosdick, Chronicle of a Generation, p. 147; Fosdick, “The Program of the Commission on Training Camp Activities with Relation to the Problem of Venereal Disease,” Social Hygiene, IV (Jan. 1918), 71-76; Arthur Kellogg to Charles W. Eliot, Aug. 30, 1917, Survey Associates Papers, Box 24. Josephus Daniels, T he Navy and the Nation: War-Time Addresses (New York, 1919) , pp. 56-69; Fosdick, Chronicle, pp. 162-63.

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Service. “I want them to have armour made up of a set of social habits replacing those of their homes and communities/ ’57

France provided a real test for the “invisible armour” of the American soldier. He was forbidden to buy or to accept as gifts any alcoholic beverage except light wine and beer. Despite hundreds of letters of protest from American mothers, Fosdick and Baker decided it would be impossible to prevent the soldiers from drinking wine in France. But sex posed a more serious threat, for both the British and French armies had tried to solve the problem of venereal disease by licensing and inspecting prostitutes. Clemenceau could not understand the American attempt to outlaw prostitution and even accused the American Army of spreading disease among the French civilian population. He graciously offered to provide the Americans with licensed prostitutes. General Pershing considered the offer “too hot to handle” and gave it to Fosdick. When Fosdick showed it to Baker, the Secretary of War remarked, “For God’s sake, Raymond, don’t show this to the President or he’ll stop the war/’ The Americans never accepted Clemenceau’s invitation and he continued to be baffled by the American progressive mind.58 One of the overriding assumptions of those who sought to protect the American soldier at home and abroad was that he would learn from his experience and return to help make a better America after the war.59 Indeed one of the major reasons for the optimism of the social justice reformers was their confidence that the experiments and social action of the war years would lead to even greater accomplishments in the reconstruction decade ahead. Robert Woods surveyed the positive actions of the federal government during wartime in the spring of 1918 and asked, “Why should it not always be so? Why not continue in the years of peace this close, vast, wholesome organism of service, of fellowship, of constructive creative power?”60 Even Jane Addams, who saw much less that was constructive about war than did many of her colleagues, lectured for Herbert Hoover’s Food Administration, and looked ahead 57 “Community and War Recreation Service/* Playground, X I (1918), 349-54; Newton Baker, “Invisible Armour/* Playground, X I (1918), 473-81. See also Fred Baldwin, “Invisible Armor,” American Quarterly, XVI (Fall 1964), 432-44. 58 Palmer, Newton Baker, II, 292-303; Fosdick, Chronicle, p. 171. Just as important for understanding the progressives at war, however, was the long and elaborate scientific report drawn up by the Americans to demonstrate that the venereal disease rate was lower in the American than in the French Army. 59 See, for example, Thomas D. Elliot, “Possible Effects of War upon the Future of the Social Hygiene Movement/* Social Hygiene, IV (Apr. 1918), 219-23. 60 Woods quoted by Winthrop Lane, “National Conference of Social Work,” Survey, XL (June 1918), 256-57.

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with confidence and hope for the future.61 Paul Kellogg, editor of The also mirrored some of the hope for continuing the reform that the war had accelerated when he wrote to his subscribers in Septet, ber 1918:

Survey,

With hundreds of people for the first time shaken out of their narrow round of family and business interests and responding to public service as a patriotic call, with American help going out to the far ends of the earth as at no time since the early stages of the missionary movement; with federal action affecting housing, labor relations, community life, as never before; with reconstruction plans afoot in England and France . . . we feel that Th e Survey has never before faced such a great obligation and such a great opportunity.62 Of course the enthusiasm for the present and optimism for the future was sometimes tempered by doubts. There was the occasional glimpse of the horror of war, especially by those who went overseas. There was the abridgment of the freedom of speech and the persecution of radicals and aliens and pacifists. There was the fear that opposition or apathy would arise after the war to strike down the gains, and that the American labor movement, led by Gompers, was too conservative to take advantage of the opportunity for labor advance. There was even a lingering worry about the very enthusiasm for reform that made the war years exciting, concern over the disappearance of the opposition and even the decline of debate over immigration restriction, prohibition and other measures. But the doubts were few and far between. Most of the social justice reformers surveyed the success of social reform at home and looked confidently toward the future. For them the war was not so much a war to make the world safe for democracy as it was a war that brought to a climax their crusade for reform at home.63 Yet the progressives deluded themselves. They were the victims of their own confidence and enthusiasm, for the social reforms of the war years were caused more by the emergency situation than by a reform consensus. Quickly after the war, the Wilson administration abandoned

61 Jane Addams, T h e Second Twenty Years at H ull House (New York, 1930), pp. 144-52; Herbert Hoover to Jane Addams, Mar. 2, 1918, Addams MSS; Addams, “World’s Food and World’s Politics,” Proceedings NCSW , 1918, pp. 650-56. Jane Addams more than most of the social justice reformers looked ahead to international reconstruction. 62 Paul Kellogg to Jane Addams, Sept. 20, 1918, Survey Associates Papers, Box 2. 63 Paul Kellogg to Homer Folks, Apr. 5, 1918, Box 24; Kellogg to Edward T. Devine, July 2, Aug. 29, 1918, Box 22; Frederick Almy to Kellogg, Oct. 21, 1918, Box 17; Arthur Gleason to Kellogg, Apr. 23, 1918, Survey Associates Papers; “Free speech and Peaceable Assembly,” Survey , XXXVIII (May 12, 1917), 144-45.

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public housing and social insurance, and withdrew the government from participation in many areas. The gains for labor and the Negro proved ephemeral, and the dream that the newly enfranchised women, together with a generation of young men educated on the battlefields and in the training camps, would lead a great crusade to reconstruct America turned out to be idealistic in the extreme. By 1920 there was little left from wartime social reform except prohibition, immigration restriction and racist hysteria. The disillusionment that followed can be explained in part by the false hopes raised by the war. Many social justice progressives had been discouraged by the failure of the Progressive Party, then rescued by the excitement of the wartime social experiments. The collapse of the dreams fostered by the war changed American reformers irrevocably. They would never again be quite as optimistic and enthusiastic. Their faith in statistics and their confidence that the American people really wanted reform were shattered. Yet the despair was not complete—it never reached the depths that marked the group of young intellectuals which Ernest Hemingway came to symbolize. Their disillusionment was tempered by a lingering vision of social justice, a vision of government action to protect the rights of labor, and especially the working woman and child, of public housing and social insurance, of equal opportunity for the Negro and other minorities. A number of social justice progressives worked quietly and sometimes forlornly during the twenties preparing to battle for the success of some of their plans in the 1930s and after. Very often their point of reference was World War I.64 It is no longer possible to say simply that the war ended the progressive movement. It was not the war itself which killed reform, but rather the rejection afterward of the wartime measures which seemed at the time to constitute the climax to the crusade for social justice. Yet scholars interested in the collapse and survival of progressivism should examine the war years, for here were raised some of the hopes that were later dashed and some of the dreams that were later fulfilled. positive

64

For the story of the struggle for reform in the twenties see esp. Chambers, Seed-

time of Reform.

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C L E M E N T E. V O S E Bowdoin College

The National Consumers’ League and the Brandeis Brief* Sin c e 1899 the National Consumers’ League has contributed

heavily to the successful struggle in the United States to enact, enforce and defend protective labor legislation. The latter-day development of organizations to inform shoppers of the “ best buy ” in the market has eclipsed the League’s idealistic purpose in organizing “ to have consumers use their buying power, their economic and political power, to compel the payment of decent wages.” 1 Consumer action as a method of reform developed during the 1890’s when so many people became consciencestricken over the miserable working conditions created by industrialism.2 Correction came only after the public was aroused, and * The preparation of this article was assisted by a grant from the Faculty Research Fund Committee of Bowdoin College, which is gratefully acknowledged. Miss Elizabeth Magee, General Secretary of the National Consumers’ League, allowed access to records still located at headquarters in Cleveland. Mrs. Pearl W . Von Allmen, Law Librarian for the University of Louisville, permitted use of the Louis D. Brandeis papers. Mrs. Suzanne Zwemer, Secretary of the Consumers’ League of New Jersey, loaned records which the author prepared for permanent deposit at the Library of Congress. The author profited from conversations with these women and with Elizabeth Brandeis, Mary W . Dewson, and Elinore M. Herrick. 1 Donald E . Richberg, Labor Standards Conference (Second Annual Report, 1933), back cover. 2 For full histories of the League, see Josephine Goldmark, Impatient Crusader, Florence Kelley's Life Story; Foreword by Felix Frankfurter; Preface by Elizabeth Brandeis (Urbana: University of Illinois Press, 1953); and Maud Nathan, The Story of an Epoch-Making Movement; Foreword by Newton D. Baker, Mary Anderson and Edward A. Filene (Garden City: Doubleday, Page & Co., 1926). For brief accounts stressing the League’s importance in general historical developments, see Robert H . Bremner, From the Depths: The Discovery of Poverty in the United States (New York: New York University Press, 1956),

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this came only after facts and figures about conditions were provided. The leaders were individuals who did not experience in their own daily lives the factory working conditions they sought to change. Rather they were aroused by the very helplessness of the men, women and children whom they acted to protect. I. L e a d e r s h ip

In the first years of the new century, activity in consumer organizations had great prestige among socially prominent women across the country. Directors or officers of state leagues included the names of Choate, Morgan, and Vanderbilt in New York; Gardiner, Lawrence, Peabody, Phillips, and Shaw in Massachusetts; Fels in Pennsylvania; Garfield, Hanna, and Mather in Ohio; Kent, McCormick, and Root in Illinois; and Sensenbrenner in Wisconsin. N ot only did the society leaders in the League contribute most of the money, but they also participated actively in the work of the League. This was true of Eleanor Roosevelt and Frances Perkins, for both of them devoted much time to the organization during its early years. The life of Florence Kelley is almost a biography of the National Consumers’ League as she served as its general secretary from its origin in 1899 until her death in 1931. Her qualifications for the position were ideal. As the daughter of a Pennsylvania Congressman known as “ Pig Iron ” Kelley, she early gained a firm grasp of public affairs and politics. One of the first women to graduate from Cornell University, Florence Kelley also earned a law degree from Northwestern. After college she spent three years in Europe studying in Zurich. Here she became interested in socialism and translated into English Friedrich Engel’s, The Condition of the W orking Class in England in 1844. Back in the United States after an unsuccessful marriage in Europe, she always used her maiden name. Soon Mrs. Kelley was a resident of Hull House, an intimate friend of Jane Addams, the settlement house pp. 232-243; Arthur M. Schlesinger, Jr., The Age of Roosevelt: The Crisis of the Old Order, 1919-1933 (Boston: Houghton-Mifflin Co., 1957), pp. 23-26; and George Soule, “ Consumers’ League,” Encyclopedia of the Social Sciences, IV, 291-293.

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leader, and of Henry Demarest Lloyd, author of Wealth Against Commonnvealth. These early associations with reformers continued, and it was typical that she was a director of the National Association for the Advancement of Colored People from 1909 to her death. Mrs. Kelley obtained practical experience in improving the conditions of labor after 1893 when she was appointed by Governor Altgeld to be Chief Inspector of Factories for Illinois. In 1899 she was called to New York to conduct the work of the National Consumers’ League. As we shall see, Mrs. Kelley understood the difficulties of improving the conditions of work throughout the whole country, and her strategy was as broad as the problem she faced. Her time was divided among lecturing, writing, and directing the organization of the Consumers’ League at national headquarters on Henry Street in New York City. Felix Frankfurter has recently recalled that “ Florence Kelley was one of a galaxy of wonderful women with whom she worked—Jane Addams, Julia Lathrop, Lillian D. Wald, Grace and Edith Abbott, Alice Hamilton, among others. Florence Kelley seemed at the time, and remains in memory, the most salient, salty character of them all.” 3 On the professional staff of the National Consumers’ League, Mrs. Kelley’s main support came from Miss Josephine Goldmark, who subsequently wrote her biography. As chairman of the League’s important Committee on Legislation, Miss Goldmark directed some of the early campaigns for reform. Then from 1908 until 1915 she worked closely with Louis D. Brandeis, her brother-in-law, in the defense of legislation in the courts. She survived Mrs. Kelley by twenty years, during which time she provided a good deal of informal direction to League affairs. Her sister, Miss Pauline Goldmark, working chiefly for the New York Consumers’ League, contributed to the publications of the national league. In the twenties, a new generation of women enlisted to carry on the work of the League. T o the national office came Jeannette Rankin, who as Congresswoman from Montana had in 1917 cast a vote against America’s entry into the first W orld W ar and s Goldmark, Impatient Crusader, p. ix.

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was to do the same in 1941. Miss Rankin assisted Mrs. Kelley, travelling over the country as a lecturer. At the same time, Mary W . Dewson took over much of the work of Josephine Goldmark in doing economic and social research. The presidents of the National League during these years were a distinguished and active group of men. First was John Graham Brooks, Bostonian, Unitarian and independent social scientist who wrote many books, including T h e Social Unrest and Labor's Challenge to the Social Order. On vacating the office after sixteen years, Brooks was honorary president of the League until his death in 1938 at age ninety-one. In 1915 Newton D. Baker succeeded to the presidency of the League. Baker had been City Solicitor and Mayor of Cleveland and was soon appointed Secretary of W ar under Wilson. In 1923 John R. Commons, professor of economics at the University of Wisconsin and historian of the American labor movement, became president and continued in office until 1935. The last in line for the period before 1938 under study was John G. Winant, liberal Governor of New Hampshire, first chairman of the Social Security Board, and later American Ambassador to Great Britain. A number of college professors in the social sciences contributed intellectual assistance to the National Consumers’ League during its most active years. These included Richard T . E ly of the University of Wisconsin; Arthur Holcombe and Sumner Slichter of Harvard; Frank P. Graham of the University of North Carolina; E . R. A. Seligman of Columbia University; Walton H. Hamilton and Irving Fisher of Yale University; William A. Neilson of Smith College; Mary E . W ooley of Mount Holyoke College; W alter W illcox of Cornell University; and Monsignor John A. Ryan of Catholic University, an especially effective supporter of the League’s objectives. Since the prime method of the National Consumers’ League was educational, these leaders of thought played a vital role in advancing the work of the organization. Lawyers played important functions in drafting model legislation, defending the position of the League in court cases, and advising on the constitutional problems of the day. Louis Brandeis was preeminent as counsel until 1916, when he was appointed to

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the United States Supreme Court. His successor was Felix Frankfurter, then a professor at Harvard Law School. Newton D. Baker, Benjamin Cohen and Dean Acheson were among the attorneys who assisted the National Consumers’ League during the early New Deal period. II.

P o l it ic a l A c t iv it y

Early experience taught the National Consumers’ League to take different types of action to achieve its objective of raising standards of employment for women and children. Devoted supporters could make a personal contribution to the League’s purpose through alert shopping. The principles of the organization declared it to be “ the duty of consumers to find out under what conditions the articles they purchased are produced and distributed, and insist that these conditions shall be wholesome and consistent with a respectable existence on the part of the workers.” * The League made it practical for members to live up to these ideals. Led by Florence Kelley, volunteers acting as private factory inspectors persuaded manufacturers of ladies underwear to stitch on their goods the Consumers’ League label signifying that production had taken place under satisfactory working conditions. In 1903, this meant that “ the state factory law is obeyed; all the goods are made on the premises; overtime is not worked; children under sixteen years of age are not employed.” A declaration of the National Consumers’ League explained that this guaranty was based on the following procedure: Before the use of the label is awarded to a manufacturer, his factory is visited and an agent of the League also asks both the local Board of Health and the State Factory Inspector for a report on the establishment. When this is satisfactory, the manufacturer signs a penalty contract embodying the four points guaranteed. After the use of the label is awarded, the factory is visited from time to time by the Agent of the League, and the local committee of the League reports it to the National Secretary. ‘ N .C .L . Fourth Annual Report (1903). See John Graham Brooks, “ The Label of the Consumers’ League,” Publication of the American Economic Association, Third Series (New York: Macmillan Co., 1900), I, 250-2S8. Also, see “ The Consumers’ League Label and Its Offspring,” Survey (August 8, 1914), XXXII, 478.

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Although the use of the label declined after 1917, when it was generally superseded by the union label, the Consumers’ League continued through the years to emphasize direct action through boycott by the shopping public. Intelligent consumption based on investigation and education was an approach to the problem of working conditions which necessarily laid great stress on publicity. The location of the League with other organizations at the United Charities Building in New York afforded important advantages, as The Survey, The Outlook and related magazines edited there over a period of years served almost as house organs for the Consumers’ League. The organization also had many friends among people of influence like teachers and ministers, and it sought them as the Reverend James T . Bixby’s report to the seventh annual meeting reveals.0 During the last year I have sent out about fifty letters to clergymen and men of distinction, asking for their interest and sympathy in the work of the League; also asking them to promise to address public audiences occasionally in behalf of the League, due notice to be given them. The pastors of the churches have been asked to make the work of the League the theme of some Sunday service, or subject of some address to their congregations. Favorable answers have been received from Rev. Newell Dwight Hillis, of Plymouth Church; Rev. Lyman Abbott, Rev. Martin K. Schermerhorn, of Poughkeepsie; Dr. Maurice A. Harris, Rev. Charles F. Dole, of Jamaica Plain, Massachusetts; Rev. Frank O. Hall, Rev. Paul R. Frothingham, of Boston; Rev. James M. Ludlow, Rev. C. B. Elder, Rev. William B. Stevenson. Thus directly and indirectly did the National Consumers’ League seek to gain its ends. The legislative accomplishments of the Consumers’ League came from careful research, clear goals and involved alliances. Commonly, after study and wide consultation, the League drafted a model bill on maximum hours, night work for women, child labor and other subjects. In 1910, for example, a model minimum wage bill was drawn up, and in 1912 it was first enacted in Massachusetts. Through the work of state and local consumers’ CN. C. L. Seventh Annual Report (1906).

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leagues, essentially the same model soon afterwards became law in twelve other states and the District of Columbia. This pattern was repeated on other issues and at the national level, too, through alliances of the League with organizations like the American Association for Labor Legislation and the National Child Labor Committee.6 W hen statutes were on the books, Mrs. Kelley and Miss Goldmark, unlike some reformers, showed acute insight into the cycle of policy-making by focusing the attention of the National Consumers’ League on public administration. Mrs. Kelley’s experience in factory inspection for the state of Illinois had taught her useful lessons in dealing with the administrative branch of government everywhere, and she incorporated these in her body of teachings.7 Following the work of getting legislation comes the less exciting task of enforcing it. Nowhere are there enough factory inspectors for the effective enforcement of the Child Labor Laws. In some states, notably in Pennsylvania, an annual inspection is all that is regularly attempted. T o meet this dearth, women have made during the present year, efforts to secure the appointment of women as inspectors in Minnesota and Connecticut. It is desirable that in every state in which there is a Consumers’ League the effort might be continued until crowned with success for the increase of the number of inspectors, and the addition of women to the staff. By 1906 fifteen states had women factory inspectors. Some of these women were also members of the Consumers’ League, carrying organizational zeal directly into the job of enforcing the new laws. Where direct control of administration was absent, Mrs. Kelley requested “ all state and local leagues to make investigations within their own territory into the hours of labor and the wages and cost of living of working women and girls.” She would “ gladly furnish suggestions as to methods of procedure.” Mrs. Kelley’s interest in conducting these inquiries meant that the League was armed with facts to use before legislative committees or to nudge officials charged with enforcing the law. ®See Elizabeth Brandeis, Labor Legislation (History of Labor in the United States, 1896-1932, Vol. IV) (New York: Macmillan, 1935). 7 N. C. L. Eighth Annual Report (1907).

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The third branch of government was not neglected by Mrs. Kelley, for when the courts threw up obstacles in her path, she responded with the same methods of action used to win legislative and administrative victories. Her faith in organization, in factfinding, and in education, as well as her belief in eventual progress is shown in her reaction to an adverse judicial decision before the turn of the century. When the Illinois Supreme Court, in 1895, invalidated an eight-hour law for women,8 Mrs. Kelley pointed out that maximum hours legislation had been upheld in many states and had long been in force in Europe. She continued, caustically,9 It remained for the Supreme Court of Illinois to discover that the amendment to the Constitution of the United States passed for the purpose of guaranteeing the negro from oppression, has become an insuperable obstacle to the protection of women and children. Nor is it reasonable to suppose that this unique interpretation of the fourteenth amendment will be permanently maintained, even in Illinois. . . . It may be that the court is as advanced as that portion of the community which is not yet thoroughly aware that Illinois is the third great manufacturing State of the Union. When, however, the observations made during a few more years shall have convinced the medical profession, the philanthropists, and educators, as experience has already convinced the factory employees themselves, that it is a matter of life and death to young people who form so large a proportion of their numbers, to have a working day of reasonable length guaranteed by law, it will be found possible to rescue the fourteenth amendment to the Constitution of the United States from the perverted interpretation upon which this decision rests. W e hope that Ritchie vs. T h e People will then be added to the reversed decisions. Developments proved Mrs. Kelley right. The Ritchie decision with respect to maximum hours for women was reversed in 1910,10 but the courts did not universally accept her view on minimum wages until twenty-five years later. 8Ritchie v. People, 155 111. 98, 40 N.E. 454 (1895).

• Florence Kelley, Some Ethical Gains Through Legislation (New York: Macmillan Co., 1905), p. 141. 10 Ritchie v. Wayman, 244 111. 509, 91 N.E. 695 (1910).

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Although Florence Kelley had a remarkable insight into the total governmental process, her own emphasis on the enforcement of laws left the direction of court cases to Josephine Goldmark. In dealing with problems, the leadership of the League was eminently practical. A t first, Miss Goldmark acted as chairman of the Committee on Legislation, its duties being to “ keep informed and report to the Executive Committee all legislation concerning the objects in which the National Consumers’ League is interested. . . 11 When the statutes met opposition in the courts, in 1908, the by-laws were amended to form the Committee on Legislation and Legal Defense of Labor Laws with added duties to “ assist in the defense of the laws by supplying additional legal counsel and other assistance.” 12 Thereafter, the organization kept watch on the three branches of government at both state and national levels. Adversity faced the National Consumers’ League in 1923 when the Supreme Court invalidated the District of Columbia minimum wage law in the case of Adkins v. Children's Hospital.13 This loss produced feverish interest in possible methods of reforming the law, the Court, or the Constitution. John R. Commons, then new as League president, polled a number of authorities in constitutional law for opinions on appropriate action. Felix Frankfurter, counsel in the Adkins case, presided over a minimum wage conference called by the National Consumers’ League in the spring of 1923.14 It was evident that much might be done short of constitutional change to protect through law the women and children then working too much for too little. Upon “ the basic theory of our common law system that a case decides a case, and nothing else,” Frankfurter urged “ the absolute importance of continued aggressive enforcement of those laws which have been untouched by this decision. . . 15 Where statutes fell, new wording should be fashioned to accommodate the judicial objec11 N. C.L. Sixth Annual Report (1905). 12 N. C .L. Ninth Annual Report (1908). 13 262 U.S. 447 (1923). 14 Minimum Wage Conference, April 20, 1933, National Consumers’ League

Papers, Library of Congress. 15 Ibid.

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tions. Suggestions were made that minimum wage laws would be safe only after vacancies appearing in the Supreme Court were filled with liberal men. Also, the League asked Congress to enact a law to the effect “ that all state and federal laws shall conclusively be deemed to be constitutional unless the Supreme Court otherwise determines by an affirmative vote of at least seven members if it be a state law, and by an unanimous affirmative vote if it be an Act of Congress.” This was a precursor of the 1937 effort to curb the Court and was taken up by Senator Borah and the Progressive Party platform in 1924. A t the same time, the National Consumers’ League renewed its interest in a Child Labor Amendment and worked tirelessly with the National Child Labor Committee to bring this about. Both efforts failed. III. Focus o n t h e C o u r t s Assembling the Sociological Data The partnership of Louis D. Brandeis and the National Consumers’ League in the preparation of sociological briefs for the defense of labor legislation was by no means accidental.1® Brandeis had an enormous reputation among reformers of the century’s first decade, for he early applied his brilliant legal mind to solving specific labor relations problems. In 1902 he provided advice for Clarence Darrow, who presented the mine workers’ case before the Anthracite Coal Strike Commission created by President Theodore Roosevelt. As counsel for certain corporations in N ew England, Brandeis had stressed the need of regular employment for all working men. His reputation as an insurgent, together with his personal connections with Josephine Goldmark, as her brother-in-law, and with Florence Kelley, as a mutual friend of H enry Demarest Lloyd, makes understandable their request, in 16 Little has been written on the work of Brandeis as an attorney for the Consumers’ League. For general information and appraisal of Brandeis, see Alpheus T. Mason, Brandeis: A Free Man's Life (New York: Viking Press, 1947); Paul Freund, On Understanding the Supreme Court (Boston: Little,Brown and Co., 1951), pp. 45-75; Samuel J. Konefsky, Holmes and Brandeis (New York: Macmillan, 1956); Ervin H. Pollack, The Brandeis Reader (New York: Oceana Publications, 1957).

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1907, that he help defend the Oregon ten-hour law. Miss Goldmark has reported her sensations as she and Mrs. Kelley first went to ask Brandeis for help.17 What he would say, we had no idea. After all, he had had no hand in shaping the legal record nor in presenting the defense in the state courts. The verdict of the highest court in Oregon was in our favor; but in the U. S. Supreme Court the adverse Lochner decision invalidating an hour law stood menacingly in our path. The time to prepare a brief was very short, probably not more than a month. As we know, Brandeis agreed to take command. His appearance as counsel for the State Industrial Commission in Muller v. Oregon was the first of a series of appellate court cases in which the National Consumers’ League provided defenses of labor legislation.18 Josephine Goldmark has related further what Brandeis told her would be needed for a brief, “ namely, facts, published by anyone with expert knowledge of industry in its relation to women’s hours of labor, such as factory inspectors, physicians, trades unions, economists, social workers.” If she could return in two weeks to Boston “ with such printed matter, sufficiently 17 Goldmark, Impatient Crusader, p. 154. 18 A National Consumers’ League pamphlet states that the organization prepared

briefs in the support of fifteen cases. Thirty Five Years of Crusading, 1899-1935 (New York: National Consumers’ League, 1935), p. 10. While no official listing is available, a compilation of known cases in which the League was involved is given below. Where two courts are cited for a single case, the League participated in both proceedings; one citation for a case signifies more limited involvement by the League. Muller v. Oregon, 208 U.S. 412 (1908); Ritchie v. Way man, 244 111. 509, 91 N .E . 695 (1910); People v. Elerding, 254 111. 579, 98 N .E . 982 (1912); Ex parte Hawley, 85 Ohio 495, 98 N .E . 1126 (1911), affirmed, Hawley v. Walker, 232 U.S. 718 (1914); Ex parte Miller, 162 Cal. 687, 124 Pac. 427 (1912), affirmed, Miller v. Wilson, 236 U.S. 373 (1915); Bosley v. McLaughlin, 236 U.S. 385 (1915); Bunting v. Oregon, 243 U.S. 426 (1917); Stettler v. O'Hara, 69 Ore. 519, 139 Pac. 743 (1914), affirmed, 243 U.S. 629 (1917); People v. Charles Schweinler Press, 214 N .Y . 395, 108 N .E . 639 (1915), affirmed, 163 App.Div. 620, 148 N .Y .S. 725 (1914); Children's Hospital v. Adkins, 284 Fed. 613 (D.C.C. A., 1922), affirmed, Adkins v. Children's Hospital, 261 U. S. 525 (1923); Radice v. New York, 264 U.S. 292 (1924); Gainer v. Dohrman, S.F. No. 10, 990, Sup. Ct. Calif (1924); Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936).

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authoritative to pass muster/’ she and Brandeis would then work up the material into a brief.19 The Outlook magazine praised what then took place, as follows: 20 . . . Miss Josephine Goldmark, of the League, delved into the libraries—Columbia University Library, the Astor Library, and the Congresssional Library were put at her service. Ten readers were employed. One, a young medical student, devoted himself solely to reading on the hygiene of occupation. It is significant that there is a lack of American statistics on this subject; there is plenty of opinion; the general conditions are a matter of common knowledge; but what we need are specific facts. Europe is ahead of America in this respect, and the foreign medical opinions are among the most impressive which were ultimately incorporated in the brief. It is only a lawyer with a broad view and large mind who would do what Mr. Brandeis did—go before the Supreme Court of the United States with a brief of one hundred and thirteen pages, of which only two pages could be construed as a strictly legal argument. The result of this impressive presentation of facts was a unanimous decision by the Court that the present and future mothers of the race are worthy of defense against the greed of man. “ While the brief provided once for all a new method of defense and established its basis,” Miss Goldmark knew that “ it needed immediate reinforcement. For, any time, Mr. Brandeis warned us, new cases might arise needing new defense.” 21 In 1909, the Russell Sage Foundation granted the sum of $2,500 to the National Consumers’ League for an extended study of the literature on fatigue in relation to the number of working hours. During that winter, the new material was pressed into use in the defense of a new Illinois ten-hour law for women in a state supreme court case. Miss Goldmark has described the brief filed for the State of Illinois.22 Mr. Brandeis’ brief again contained only a few pages of legal 19 Goldmark, Impatient Crusader, p. 155. 20 The Outlook, March 21, 1908, quoted in N. C. L. Tenth Annual Report (1909). 21 Goldmark, Impatient Crusader, p. 160. 22Ritchie v. Wayman, 244 111. 509, 91 N .E . 695 (1910). The quotation is from

Goldmark op. cit., p. 161.

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argument. But now we could make a better showing of the nonlegal evidence which we had accumulated during the past year or more. We had the experience of British factory inspectors, year by year, reinforced by that of various Continental countries and of the British dominions. On pertinent subjects, such as the greater morbidity of working women, the effects of continuance at work during illness, the general nature of fatigue, the statistics of sickness insurance societies which existed in some foreign countries—on all these allied subjects we had an abundance of new evidence. The whole made up a volume of new evidence. A victory in the Illinois case rewarded the diligence of Miss Goldmark and Mr. Brandeis as preparations for additional cases began. The repeated needs of the League and the frequent demand from outsiders for basic health and social data led to the publication of a full-scale study of the problem by Josephine Goldmark. An extra grant by the Russell Sage Foundation assisted the appearance of Fatigue and Efficiency 23 in 1912. The first 302 pages of the book dealt with the nature of fatigue, physical overstrain in industry, and the regulation of the problem by legislation. This section also contained a history of labor laws and their defense in the courts. The second part of Fatigue and Efficiency, running to 591 pages and titled “ The W orld’s Experience Upon Which Legislation Limiting the Hours of Labor for Women Is Based,” consisted of material contained in the first four briefs submitted to courts by Brandeis and Goldmark. Reliance on this compendium simplified the preparation of new legal briefs. In presenting this sociological material to the courts, Louis Brandeis played a major role. His great mastery of the law was joined by his thorough devotion to the cause of the National Consumers’ League in insisting upon decent standards of work for women and children. As an advocate before the Supreme Court, his heart and brain were together in providing a series of notable oral arguments. After Brandeis appeared in the first “ Josephine Goldmark, Fatigue and Efficiency Foundation, 1912).

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Oregon minimum wage case in 1914, William Hitz, later a federal judge, wrote this: 24 I have just heard Mr. Brandeis make one of the greatest arguments I have ever listened t o .. . . The reception which he wrested from that citadel of the past was very moving and impressive to one who knows the Court. . . . When Brandeis began to speak, the Court showed all the inertia and elemental hostility which courts cherish for a new thought, or a new right, or even a new remedy for an old wrong, but he visibly lifted all this burden, and without orationizing or chewing the rag he reached them all and even held Pitney quiet. He not only reached the Court but he dwarfed the Court, because it was clear that here stood a man who knew infinitely more, and who cared infinitely more, for the vital daily rights of the people than the men who sat there sworn to protect them. It was so clear that something had happened in the Court today that even Chas. Henry Butler saw it and he stopped me afterwards on the coldest corner in town to say that no man this winter had received such close attention from the Court as B. got today, while one of the oldest members of the clerk’s office remarked to me *that fellow Brandeis has got the impudence of the Devil to bring his socialism into the Supreme Court.’ In the 1920’s, Mary W . Dewson took over from Josephine Goldmark the task of preparing the social and economic data for the briefs of the National Consumers’ League. A graduate of Wellesley in 1897, Miss Dewson had done economic research for the W oman’s Educational and Industrial Union in Boston around the turn of the century and, in 1911, had been secretary of the Commission on Minimum W age Legislation for Massachusetts. Later chairman of the W omen’s division of the Democratic National Committee, Miss Dewson worked for the Consumers’ League from 1920 to 1925. In Adkins v. Children's Hospital,25 Felix Frankfurter and Miss 34William Hitz to Felix Frankfurter, Dec. ?, 1914, handwritten copy, N .C .L . Papers. 25 Frankfurter and Dewson prepared the brief in the case before the lower court in 1920. Children's Hospital v. Adkins, 284 Fed. 613 (D. C. A., 1922). That court’s decision against them was sustained by the Supreme Court. Adkins v. Children's Hospital, 261 U .S . 525 (1923).

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Dewson prepared the brief which the National Consumers’ League provided for the Minimum W age Commission of the District of Columbia. At a short meeting in New York, Frankfurter asked Miss Dewson to collect a great quantity of factual data supporting the reasonableness of the minimum wage law for women, which was under attack. Frankfurter believed that a bulky brief would by sheer size impress Chief Justice Taft. It apparently did. A t any rate, the brief of 1,138 pages was the largest produced by the League; and Taft, in dissent, did adopt its position. Pressed by the deadline in February, 1923, Miss Dewson wrote Mrs. Kelley that “ The N ew Republic, the Nation, the freem an and the Russell Sage Foundation loaned us proof-readers. Our office force worked in the emergency at high speed and overtime typing citations and proof reading.” Miss Dewson acknowledged that “ the force was exhausted by their exertions,” but showed her devotion to fair treatment of labor by arranging that “ they should have twice the time off that they worked overtime.” 2® The cost of printing the Adkins brief, nearly $7,000, was paid by Mrs. Willard Straight, who had “ paid in full all the cost of printing all the briefs ” since 1908.27 Miss Dewson has explained that while she prepared the sociological material, Frankfurter not only applied great care to the legal section of the brief but presented a masterly oral argument to the Supreme Court when the case was heard on March 14, 1923. Nevertheless, within a month the Court ruled the statute unconstitutional. Following the loss of the Adkins case, an attempt was made to limit the influence of the Court’s ruling so that it would not be applied to state minimum wage laws then on the books. Miss Dewson hurried to California to help the defense of the state law there. Before departing from the East, she was told by Frankfurter to remember that the precise ruling of the Supreme Court could not be challenged in the California courts. “ If the Supreme Court says that a red rose is green,” Frankfurter told her, “ then it is green.” Accordingly, Miss Dewson emphasized in a relatively short brief of one hundred pages, full of telling charts aeMary W . Dewson to Florence Kelley, Feb. 10, 1923, N .C .L . Papers. 27 Memorandum by Miss Dewson, March 22, 1923, N. C. L. Papers.

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and statistics, that the California situation was totally different from that of the District of Columbia, because of the far greater number of women affected and the vastly different economic picture. Furthermore, the California law had been in active and successful operation for over ten years, while the District law invalidated in the Adkins decision had barely passed the initial period of fact-finding, with the process of fixing the minimum wage not started in industries employing some fourth of the women wage earners. The social and economic material prepared by Miss Dewson was introduced in the brief by a short legal preface written by Professor Frankfurter. Events forced the National Consumers’ League to file a separate brief in this case because when Miss Dewson arrived in California, she found the state attorney general distinctly uninterested in assistance. Through Katharine Philips Edson, executive secretary of the Industrial Welfare Commission of the State of California, Miss Dewson arranged to file the brief as amid curiae with six local organizations in support.28 The case was dropped before it was reached for argument, and California continued to use its minimum wage law. Soon afterward, however, six minimum wage laws were declared unconstitutional on the basis of the Adkins decision.29 W orking With State Attorneys General Normally the legal defense of labor legislation by Brandeis and Frankfurter under the auspices of the National Consumers’ League, was conducted at the invitation of a state’s attorney general. Brandeis made this stipulation to Josephine Goldmark and Florence Kelley when they first asked him to help in the defense of the Oregon ten-hour law for women in the autumn of 1907. He would not consider the alternative of entering a case as a friend of the court because “ the status of appearing as an official participant on behalf of the state seemed to him an important element of strength for the defense.” 30 This meant that as 88 Gainer v. Dohrman, California, S .F . No. 10, 990, Sup. Ct. Calif. (1924). 29 For a discussion of the aftermath, see Elizabeth Brandeis, Labor Legislation, p. 505. 80 Goldmark, bnpatient Crusader, p. 163.

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far as a court knew, Brandeis, listed as “ Of Counsel ” on the brief, was a paid attorney of the State rather than a volunteer from the National Consumers’ League. After the first case, in which she was not listed, Josephine Goldmark and later Mary Dewson, neither of whom was a lawyer, appeared on the basis of the briefs to have played the same role. Through the years the League’s relationships with state attorneys general varied considerably. In 1907, Mrs. Kelley and Miss Goldmark first recognized the importance of this factor when the attorney general of New York failed to provide for the adequate defense of a night-work statute. An office memorandum written in anger by Mrs. Kelley shows her understanding of the importance of competent legal argument.31 Attorney General Mayer promised repeatedly to get this case upon the calendar before the election. He failed to keep his promise, and it came up the day after election . No representative of the Attorney General’s office was present in court. The defendants moved to submit. The people were thus deprived of their right to have the case argued. There has been no argument on this extraordinarily important case, before the appellate division. This is of great importance, because the decision is not unanimous. It is due to the vote of some of the judges, three to two. A careful and learned argument on the law of the matter, might well have won over one or two,—or even all—o i the adverse judges, to the view that the public health is involved in night work by young boys and young women. There was no presentation of the law of the case. The brief was prepared—for the People—by the Third Assistant Attorney General. In its original form it was a disgraceful exhibition of ignorance of the law on the subject. It referred to a statute as in force which was repealed three years ago,—the so-called ‘ FiftyFive Hour L a w ’ of New Jersey. No allusion was made to the valuable recent decision of the Supreme Court of Oregon, sustaining a law similar to the New York law. After these flaws were pointed out to the Third Assistant and to Attorney General Mayer, there remained still a brief without any law in it; and the case having been decided without argument, the Appellate Division is in the position of having had from the 31 Memorandum by Mrs. Kelley, Nov. ?, 1906, N. C. L . Papers.

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Attorney General none of the aid to which it is entitled in arriving at every decision affecting the rights and the well-being of the People. After Muller v. Oregon, in which the assistance of Louis Brandeis was obtained for the state by the National Consumers’ League, there were more calls for help than could be answered. In 1911, Brandeis was besieged to lend his talents to the defense of Ohio labor legislation. From Cleveland the secretary of the Ohio State Federation of Labor, Harry D. Thomas, asked Brandeis to file a brief for them in a fifty-four hour law case.22 . . . I wrote the Attorney General asking him to correspond with you on this matter. I realize that you are a busy man, more so than anyone else probably, but the constitutionality of these labor laws is a matter that effects the welfare of the whole people of this Country and your experience in testing their legality goes further probably than any other attorney in the Country on matters of this kind. This is the reason why we seek your advice and are willing to pay for it. Brandeis was indeed too busy, and he declined to serve for that reason. He did note the suggestion of paying for his services and replied, “ The matter is of such a nature that I should be unwilling to accept any compensation if it were possible for me to act at all.” 33 Soon afterwards Attorney General Timothy Hogan sought the assistance of Brandeis for the defense of the Ohio Workmen’s Compensation Act. Hogan explained that “ the oral argument will be a very important feature of the case, and I am extremely anxious that you be with us.” 34 It should be noted that the state labor federation and the Consumers’ League acted in response to efforts of business organizations to have this legislation invalidated by the courts. Accordingly, Brandeis was told by Thomas that the fight on the Workmen’s Compensation A ct “ is being put up by the Liability Cos., and they have engaged the best legal talent that they can get hold of 82 H arry D. Thomas to Louis D. Brandeis, Nov. 1, 1911, Louis D. Brandeis Papers, University of Louisville Law School. 33 Brandeis to Thomas, Nov. 4, 1911, ibid. 3i Timothy Hogan to Brandeis, Dec. 1, 1911, ibid.

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in this section and some from outside the State in preparing their briefs and for making their oral arguments against the A ct.” 35 When Attorney General Hogan, in seeking help from Brandeis, told him that “ those opposed to the act are to be represented by counsel other than defendant’s counsel,” he added this observation: 36 The defendant’s counsel will be satisfied with presenting in a very fair way reasons why the act is unconstitutional, but the other counsel will leave nothing undone in the way of argument to successfully assail the constitutionality of the act. I do not mean to say they will do anything improper, but the idea I wish to convey is that they are, in my judgment, very much opposed to the bill and being men of a very high order of ability, they will present every possible reason against its constitutionality. This correspondence is incomplete. Brandeis finally did file a brief in the hour case and then appeared to argue the case in the United States Supreme Court after receiving this further request from Thomas: 37 . . . The Ohio Manufacturers’ Association has come out with another statement saying that they will carry the case to the United States Supreme Court to define what occupations come under the provisions of such a law. I don’t know just how soon they expect to take this matter up, but I thought it best to notify you on time, so that you may get prepared to help us fight our battles in Washington. Finally, the problem of insuring strong defense for a statute in jeopardy is illustrated by the efforts of the National Consumers’ League in 1923 to persuade N ew York’s Attorney General to file an amicus curiae brief supporting the Federal Maternity A ct,38 then under attack by Massachusetts in an original case in the United States Supreme Court. Florence Kelley and the League had worked for the passage of the A ct in 1921 with representatives 35 Thomas to Brandeis, Dec. 5, 1911, ibid. 86 Hogan to Brandeis, Dec. 1 , 1911, ibid. 37 Thomas to Brandeis, Feb. 1 , 1912, ibid. Ex parte Hawley, 85 Ohio 495, 98

N .E. 1126 (1911), affirmed, Hawley v. Walker, 232 U .S. 718 (1914). 38 Maternity Act of Nov. 23, 1921, c. 135, 42 Stat. 224.

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of the League of Women Voters, the National Child Welfare Association, and other groups. This alliance, known as the United Organization for the Sheppard-Towner Maternity and Infancy Bill, held together after enactment in order to encourage New York State to take advantage of the A ct’s generous federal aid provisions. This part of their program was also successful. In the meantime, the Maternity A ct was attacked as unconstitutional in two court cases, Massachusetts v. Mellon and Frothingham v. Mellon.39 Solicitor General James Beck carried the defense of the Act, but an effort was made to have a number of states answer the attack of Massachusetts with one or more amicus briefs. The minutes of a meeting of the United Organization suggest the range of political stratagems that may be used to gain the support of a state’s attorney general in a Supreme Court case: 40 Mrs. Kelley said when she had approached Attorney General Sherman asking him to prepare his brief for the Sheppard-Towner Act, he said he was too busy but would have one prepared in his office. Later, March 6th Mr. Griffin, Attorney General’s deputy wrote Mrs. Kelley, saying the policy of the office had not been decided—the administration was not called upon to defend federal aid bills. Mrs. Kelley felt letters sent from the office were not the expression of the Attorney General’s opinion, but those of Mr. Griffin; therefore, she wrote a letter to Governor Smith, asking his aid to persuade the Attorney General to prepare the brief, or to give definite instructions to have it prepared in his office. Mrs. Kelley asked an opinion from the meeting as to the advisability of sending her letter to Governor Smith. It was the unanimous opinion of the meeting that Mrs. Kelley should send the letter she had written to Governor Smith, and should take any further steps she thought necessary in the matter. It was moved, seconded and carried to ask Mrs. Frederick S. Greene of Albany to take copies of Mr. Griffin’s letters, also Mrs. Kelley’s to Governor Smith, to the Attorney General, personally, in order there may be no doubts that the Attorney General has full knowledge of this situation. In conclusion to this it was decided to ask all people who had

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40 United Organization Bulletin, March 13, 1923, N.C.L. Papers.

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any point of contact with any lawyers in Buffalo, the home city of the Attorney General, to ask these lawyers to bring pressure to bear in regard to the preparation of the brief. The Attorney General of New York refused to cooperate with an amicus brief. But how can the influence of the Consumers’ League be fairly estimated when at the same time the Solicitor General’s office in Washington sought help in preparing the main brief? Asking for a copy of the Adkins brief written by Frankfurter and Dewson, the attorney in Washington explained that he was “ particularly interested in Mr. Frankfurter’s brief ” because he was then “ engaged in the preparation of a brief for the Federal Government in the Supreme Court supporting the constitutionality of the welfare legislation known as the Sheppard-Towner Maternity A ct.” 41 Legal W ork and Publicity As successive cases were dealt with in the courts, the League distributed its legal briefs to a wide audience. A t the very beginning it was found that “ the brief has attracted very wide attention; there is demand for it from lawyers, economists, college professors and publicists.” 42 In the 1910 Illinois case, a special fund of $2,500 was raised to meet the expense of printing a large edition of the brief. “ This brief then was available as ammunition whenever danger threatened the now rapidly increasing legislation regulating women’s hours of labor.” 43 In one year this brief was used to defend laws by state attorneys in Virginia, Michigan, and Louisiana. The impact of the Brandeis-Consumers’ League technique on the preparation of briefs would be difficult to estimate. The concept of publicity held by the National Consumers’ League was not a narrow one restricted to assisting lawyers defending labor legislation. Rather the League’s public relations 41 Robert P. Reeder to National Consumers* League, March 16, 1923, N .C .L . Papers. Reeder was on the brief with the Solicitor General. Massachusetts v. Mellon, 262 U.S. 447, 448 (1923). 42N .C .L . Tenth Annual Report (1909). 43N .C .L . Twelfth A?inual Report (1911).

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approach was calculated to educate future opinion makers. Since a bulky sociological brief was a document of primary interest to the academic world, the League worked hard to bring its message in this long form to the attention of colleges and universities. In 1917, for example, Josephine Goldmark, then chairman of the committee on publications, reported the following:44 By means of the generous gift of $5,000 from a friend interested in the defense of labor legislation, an edition of 4,000 copies of the Bunting brief was printed, a book of about 1,000 pages, in two volumes. This brief under the title of the ‘ Case for the Shorter Work D ay’ has been widely distributed. The aim has been particularly to reach students in law schools and colleges, and a gratifying response has followed the offer to send these volumes for educational purposes. Law schools and economics departments of colleges throughout the country have asked for large numbers of the brief. From England, too, repeated inquiry has come for this publication, so that its gospel has been widespread.

The brief prepared in the Bunting case was distributed to 462 law schools, colleges, and libraries in forty-five states and was sent to 717 individuals as well. While the distribution of briefs was a major part of the League’s publicity program, annual report, flyers, and leaflets such as “ The National Consumers’ League, First Quarter Century ” and “ Thirty-five Years of Crusading, 1899-1935 ” were widely circulated. Scholarly articles were sometimes reprinted at League expense.45 In 1925, the American Fund for Public Service paid for the publication of a collection of articles on the Adkins case, compiled by the Consumers’ League and published by the New Republic.*6 The book was then given wide distribution by the League.

44 N .C .L . Seventeenth Annual Report (1917). 45For example, Thomas Reed Powell, “ The Oregon Minimum-Wage Cases,” reprinted from Political Science Quarterly, XXXII (June, 1917), 296-311. 46 National Consumers’ League, The Supreme Court and Minimum Wage Legislation; Introduction by Roscoe Pound (New York: New Republic, Inc., 1925).

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IV. C o n c lu s io n The record of the National Consumers’ League in working for its goals of improved labor standards offers an example of the range of activity and the degree of improvisation demanded of an organization agitating for change through the maze of government in the American federal system. In order to gain its ends the League was forced into the legislative, administrative, litigious and constituent processes at both state and national levels. The activities of the League, especially those from 1908 to 1938, when many of its initial goals had been achieved, make up a veritable model of the strategies available to an interest group in modem America. Organizations such as the National Consumers’ League, which do not serve their own members but rather work for the protection of others, constitute perhaps a distinct category in American politics. Some might argue that the key to their success was the rightness of a cause, but the political resources of the Consumers’ League were also impeccable. W ith its strong appeal to philanthropy, the League gained adequate financial support. This same appeal drew to its leadership a small but remarkable group of devoted people endowed with intellect, energy and resourcefulness. It is these strengths which appear to account for the development of the strategy, especially in manipulating the Brandeis Brief, which was the hallmark of the Consumers’ League. This organization’s interest in the outcome of court cases illuminates the political position of the state attorney general, for any number of things may influence the performance of his duty to enforce the statutes of his state and to defend their constitutionality when challenged. His own political philosophy, party, factional, or group affiliations may interfere. As likely as not, he may lack time, funds, or an adequate staff to do the job properly. Under these circumstances, anyone concerned for the defense of legislation in the courts does well to see that the attorney general is ready, willing and able to do the job. It seems safe to assume that other organizations have had to deal with this necessity.

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National Consumers’ League experience in Supreme Court cases suggests reasons why organized interest groups may quite commonly become involved in litigation. The League had a high stake in the legal defense of protective labor legislation. It was so high as compared to the state attorneys general that the League regularly volunteered to take over the main responsibility in preparing legal briefs. The League was organized for sustained action in the defense of labor laws. It also had the intellectual leadership, political skill, legal talent and financial resources necessary for success. Formidable equipment is apparently essential for an organization actively concerned with winning constitutional cases.

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Acknowledgments Goldmark, Josephine. “The New Strain in Industry.” In Fatigue and Efficiency: A Study in Industry (New York: Russell Sage Foundation, 1 912): 4 3 -8 9 . ----------. “Some Specific Studies of Physical Overstrain in Industry.” In Fatigue and Efficiency: A Study in Industry (New York: Russell Sage Foundation, 1912): 9 0 -1 1 5 . ----------. “Labor Law and the Courts.” In Fatigue and Efficiency: A Study in Industry (New York: Russell Sage Foundation, 1912): 2 5 2 -2 5 6 . Muller v. Oregon 208 U. S. 4 1 2 -4 2 3 (1908). Bunting v. Oregon 243 U.S. 4 2 6 -4 3 9 (1917). Kelly, Florence. “The Right to Leisure.” In Some Ethical Gains Through Legislation (New York: The Macmillan Company, 1914): 1 0 5 -1 2 7 . Breckenridge, Sophonisba. “Legislative Control of Women’s W ork.” Journal o f Political Economy 14 (February 1906): 1 0 7 -1 1 8 . Nathan, Maud. “Women W ho Work and Women Who Spend.” Annals o f the American Academy o f Political and Social Science 2 7 (1906): 6 4 6 -6 5 0 . Lipschultz, Sybil. “Hours and Wages: The Gendering of Labor Standards in America.” Journal o f 'Women’s History 8, no. 1 (1996): 1 1 4 -1 3 6 . Reprinted with the permission of Indiana University Press. M ink, Gwendolyn. “The Lady and the Tramp: Gender, Race, and the Origins of the American Welfare State.” In Women, the State, and Welfare, edited by Linda Gordon (Madison: University of Wisconsin Press, 1990): 9 2 -1 2 2 . Copyright © 1990, reprinted by permission of The University of Wisconsin Press. Erickson, Nancy. “Muller v. Oregon Reconsidered: The Origins of a SexBased Doctrine of Liberty of C ontract.” Labor History 30, no. 249 (Spring 1989): 2 2 8 -2 5 0 . Reprinted with the permission of Labor History. Http://www.tandf.co.uk. Hill, Ann Corinne. “Protection of Women Workers and the Courts: A Legal Case History.” Feminist Studies 5 (1979): 2 4 7 -2 7 3 . Reprinted with the permission of the publisher, Feminist Studies, Inc., do Women’s Studies Program, University of Maryland, College Park, MD 20742. Davis, Allen. “Welfare Reform and World War I.” American Quarterly 19,

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no. 3 (Fall 1967): 5 1 7 -5 3 3 . Reprinted with permission of the author, and The American Studies Association, publisher. Copyright (1967). Vose, Clement E. “The National Consumer’s League and the Brandeis B rief.” Midwest Journal o f Political Science 1, no. 3 -4 (November 1957): 2 6 7 -2 9 0 . Copyright © 1957, reprinted by permission of the University of Wisconsin Press.