Vol. 14 No. 1 (January 2004)

PUBLIC PENSIONS: GENDER AND CIVIC SERVICE IN THE STATES, 1850-1937, by Susan M. Sterett.  Ithaca, N.Y.: Cornell University Press, 2003. 222 pp. Cloth $39.95. ISBN 0-8014-3984-1.

Reviewed by Thomas Shevory, Department of Politics, Ithaca College. Email: shevory@ithaca.edu .

Susan Sterett, Professor of Political Science at the University of Denver, has given us a meticulously researched and highly informative study of the legal evolution of public pensions from the latter half of the nineteenth to the first half of the twentieth centuries. The study provides not only much interesting historical material about the development of pensions as a form of public dispensation at the state level, it also provides a basis for rethinking the constitutional development of the welfare state in the U.S. The oft-told story of the Supreme Court in the 1930s is that five conservative justices resisted FDR's attempts to expand federal intervention into economic life via the National Recovery Act, until 1937, when Justice Roberts, under the pressure of Roosevelt's court-packing proposal, voted first to uphold the National Labor Relations Act and then the Social Security Act, providing the "switch in time that saved the nine."  This narrow approval of two important New Deal programs was the basis for all that followed, which was nothing less than a major transformation of constitutional doctrine, allowing the development of the modern administrative state.  What Sterett ably demonstrates is that there was nearly a century's worth of legal action in the states that laid the groundwork for this constitutional "revolution."  

In the pre-Civil War era, the determination of who deserved public pensions was wedded to the concept of "service." Those who served the interests of the broader community could be entitled to taxpayer-supported pension benefits, while those who merely "worked" would not be eligible for such consideration.  Ordinary workers, so the reasoning went, were engaged primarily in furthering a private interest.  At the same time, however, state and local governments provided charitable support for those who were "intrinsically DEPENDENT" (p.3), those unable to care for themselves, such as the infirm or disabled.   At first these boundaries were narrowly drawn.  Only firefighters and police officers, and their families, could be compensated from the public treasury in case of injury or death, or at retirement.  Payments to dependents, on the other hand, went to only the weakest and most vulnerable members of the community.  Over time, however, both of these categories began to widen.  The concept of service expanded to include, not only those involved with dangerous work for the community, but those engaged in civil service in general.  Dependency grew to include poor mothers, those unable to work and simultaneously care for their children.  As legislatures slowly and unevenly broadened the boundaries of these programs, they were challenged, often by business interests, marshaling highly technical legal arguments to defeat legislative proposals in state courts.

The first group of workers to attain the status of providers of public services was firefighters.  "Fighting fires," according to Sterett, "connoted the same heroism as military service, without war's horror of obligatory killing"(p.37).  Fire fighting, also unlike military service, was the responsibility of local governments. Taxes were imposed, at first on insurance companies, to provide for the widows and orphans of dead firefighters.  Insurance companies resisted in court, contending that the tax amounted to public funds for private institutions. An Illinois court found in 1852 that raising taxes for such funds was a public purpose, because, whatever the status of firefighting organizations, they were engaged in a public function.

The question of state payment of pensions to veterans of the Civil War prompted a flurry of legal activity.  While there was no question regarding the validity of payments by the national government to veterans of the union army, state and local attempts to offer veteran pensions met skepticism in some state courts.  Massachusetts, New York, and Connecticut held payments of retrospective "bounties" to veterans to be invalid, because they involved a public payment for "private purposes" (p.61).  Ironically, in the case of BOSWORTH v. HARP (1913), a Kentucky judge held that pension payments to confederate soldiers was a legitimate public purpose because those soldiers had defended the principle of state sovereignty (p.67).

The question of whether service provided by firefighters, police officers, and veterans could be analogized to other kinds of public employment was one of the most perplexing and complicated legal questions of this period, according to Sterett. As the civil service expanded, political pressures mounted on states to provide compensation for retired state employees.  Did all public employment warrant the same kind of rewards as the more dangerous, and arguably more essential, work represented by soldiers and firemen?  In 1911, the Illinois state legislature entertained the idea that not only police officers, but staff workers in the department, should be offered pensions.  Such proposals were challenged on the grounds that the work was not dangerous enough to be considered a public service.  Many of these workers, as in the case of Chicago police matrons, were women (p.87).   Public school teachers, many of whom, again, were women, also faced challenges to their attempts to gain pensions. Members of a New Hampshire constitutional convention entertained and then defeated a constitutional amendment that would have offered teachers pensions (p.98). Yet, over time, a broader notion of public service employment, as distinct from private industrial work, took hold in many states.  Sterett notes that "[The] gradual, however uneven, expansion of coverage reflected not only increasing political support for pensions but also confidence in an increasingly broad and flexible understanding of public purpose as a constitutional requirement" (p.97). Thus as pensions expanded, so did the understanding of the meaning of the concept of the public within the legal and political culture as a whole.

As states expanded the meaning of public service, reformers began to advance the claim that women raising children alone without financial means ought to be eligible for some state support. While mothers in such circumstances were eligible for charity, this implied dependency, not reward for the public service of raising children. As with the expansion of other pensions, the question of whether motherhood deserved recognition, as an activity in-itself, was caught in a web of constitutional and legal challenges.  Sterett states that "In the eyes of legal authorities, any payments to women outside the structure of the patriarchal family must necessarily be based on indigence.  Critics, and, with few exceptions, the courts to which they appealed, continued to regard mothers' pensions as a form of poor relief, consistent with the state's traditional obligation to support the destitute and dependent" (p.108).  In Arizona, where mothers' pensions were adopted via ballot initiative, they were invalidated by the state's highest court, largely on the grounds that they failed to provide for the poor (because the program eliminated almshouses) and because they provided support for widows who were not poor, and who therefore did not need public support.   States were fairly consistent "in their refusal to recognize the work of mothering."(p.125) and in their determination to "treat women as intrinsically dependent"(p.128).  Sterett contrasts mothers' pensions to workman's compensation, which during the early part of the twentieth century, became widely accepted among states, as satisfying a public purpose.  Workmen's compensation was a reward for service performed and recognition of the dangerousness of much industrial work, which made it analogous to military service (p.137).

Attempts to extend pension benefits to all of the elderly also met with determined resistance.  An extensive pensions system adopted by the Pennsylvania legislature in 1923 was invalidated by the state Supreme Court for violating an 1873 constitutional provision preventing the use of public funds for private purposes (p.156).   Old age pensions in New Hampshire and Colorado met a similar fate.  Thus, arguments regarding the constitutionality of various safety net programs were presented at the state level in decades well before they were addressed to the U.S. Supreme Court.  "Public pensions," Sterett states, "for all elderly people who had worked for wages, which by 1910 had champions in the states, depended constitutionally on the argument that all work-not just dangerous work or work in public employment-constituted service (p.139). In the end, "rewarding all labor as service . . . went further than any court was willing to go" (p.139).   The Crash and what followed required reconsideration of this premise, and that reassessment was central to Roosevelt's New Deal.  Moreover, it was facilitated by legal arguments that had been previously formulated and refined, if not entirely accepted, at the state level.

PUBLIC PENSIONS represents an impressively researched examination of what at first glance might seem to be a fairly arcane field of state law.  First-rate historical scholarship on state law is not always easy to find, so that in-itself is a worthy accomplishment.  But Sterett not only investigates a field of law that has been previously neglected, into her analysis of it are woven important questions about gender equity, the political meaning of dependency, the public/private distinction, as well as constitutional issues related to federalism, separation of powers, and judicial review.  She does an admirable job of interweaving these various conceptual strands into the historical analysis. The arguments are sometimes rather technical, but Sterett's clear writing style allows an attentive reader to follow their intricacies. Given the many important legal and political themes addressed by the analysis, Sterett's book deserves serious attention from a wide variety of scholars interested in the public law and policy of a continuously evolving welfare state.

CASE REFERENCE:

BOSWORTH v. HARP, 154 Ky. 559 (1913).

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Copyright 2004 by the author, Thomas Shevory.