Vol. 12 No. 10 (October 2002)

CONSTITUTING WORKERS, PROTECTING WOMEN: GENDER, LAW, AND LABOR IN THE PROGRESSIVE ERA AND NEW DEAL YEARS, by Julie Novkov. Ann Arbor, Michigan: The University of Michigan Press, 2001. 320 pp. Cloth $44.50. ISBN 0-472-11198-1.

Reviewed by Gloria C. Cox, Department of Political Science, University of North Texas. Email: gcox@unt.edu

Less than two months after President Roosevelt sent to Congress his proposal to increase the number of justices on the Supreme Court, the Court ruled in the case of WEST COAST HOTEL CO. v. PARRISH that Washington State's minimum wage law for women was a constitutional exercise of state police power. According to common wisdom, that case was evidence that the Supreme Court had blinked in response to presidential wrath and public hostility over its rejection of several pieces of New Deal legislation.

Julie Novkov, author of CONSTituting Workers, Protecting Women: Gender, Law, and Labor in the Progressive Era and New Deal Years, rejects the idea of a change of heart by the Supreme Court and instead argues for a reinterpretation of the Court's ruling in WEST COAST HOTEL CO. v. PARRISH (1937). In her view, that decision was not a break with earlier rulings but rather the culmination of more than sixty years of arguments about regulating the workplace.

Novkov argues that, over time, legal reasoning evolved through several stages and included not only debates over individual liberty versus police power, but also debates about how women and men are different in the workplace. The real breakthroughs in workplace regulation were laws that concerned women workers only, as opposed to laborers in general. By 1937, the economic liberty argument was soundly rejected in favor of regulation, not only for women but for men too in cases of particularly difficult and dangerous work. By this reasoning, the fact that WEST COAST HOTEL CO. v. PARRISH reached the Supreme Court when it did, at the point of controversy over New Deal legislation, was coincidental and caused scholars to misconstrue the significance of the case.

According to Novkov, these legal debates over regulation of the workplace evolved in the period from 1870 to 1937, resulting in a foundation on which the Supreme Court could base its ruling in WEST COAST HOTEL CO. Her main premise is that it is impossible to explain and understand the evolution of these issues without focusing on gender and making it a key part of the analysis. For the author, WEST COAST HOTEL CO. has "deep roots in the past" (2). Cases such as LochNer v. New York (1905) and WEST COAST HOTEL CO. v. PARRISH (1937), as well as other less-well-known cases, are directly related to the arguments about whether women and their work can be regulated. In the author's words, "…the reasoning in this case reflected the Court's complicated resolution of a debate over women's roles as laborers" (12).

Novkov takes the reader through several definable stages in the development of the new legal thinking that eventually resulted in the WEST COAST HOTEL CO. ruling. She begins with the period of generalized balancing in the 1870s and 1880s, a time when most judges still viewed the Fourteenth Amendment's due process guarantees as prohibiting any interference in the employer-employee relationship. They followed the legal standard that the relationship between employer and employee was a bargain between equals, resulting in a contract. This process, however fanciful it may strike us now, was seen as an important part of liberty: the right of the worker to sell his labor at the best price he could negotiate.

To place any regulations on the process was to deprive the laborer of some of his freedom to negotiate with the prospective buyer of his work, so naturally legislators and judges would require powerful and persuasive arguments to intervene in what they viewed as an essential expression of human liberty. Somehow they would have to be convinced that the state's police power could legitimately be used for the larger societal good, even if it meant that some aspects of individual economic liberty were constrained. Illustrative of the general view of judges in this period was the 1885 New York Court of Appeals ruling in In re Jacobs that struck down a law barring the production of cigars in tenement buildings. The court defined liberty as "the right …of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation." Even after the turn of the century, in Lochner, the Supreme Court characterized the employee as the "rational, capable, implicitly male individual."

The author moves through the stages of development of legal principles and their refinement. Clearly, the author has identified important issues that were of intense interest at the time, such as how the health of women was affected by working long hours, often while standing. The main concern was whether their reproductive capacity was harmed by the conditions they endured and the fatigue that necessarily accompanied such taxing circumstances. The question, as Novkov indicates, was far less, of course, about individual women and far more about the interest society might have in protecting women in general as the bearers of future generations. Obviously, it was much more legitimate to protect the health and well being of society than to focus on the individual worker, so that is exactly where the argument took place. There were also debates about whether regulation of the labor market would make women less vulnerable to societal immorality such as prostitution. Of great importance, too, was the nature of women's liberty, which did not include the right to vote.

This book is rich with information about the legal issues of the period discussed, including the importance of the Brandeis brief and its relevance to judges. The data provided to judges commonly focused on the reproductive function of women, and Novkov makes it clear again that the concern was not for women as individuals, but for society in general. She introduces the reader to reform-minded groups of the Progressive era, including their recognition that litigation can often accomplish a great deal more than legislative action. It also becomes obvious that the arguments used to protect women could and would at some point be applied more generally to all workers and types of work.

One of the most interesting aspects of the book is the development after 1910 of the very real split between groups working on behalf of women. At the heart of their sharp difference of opinion was the view on one side that women encountered truly awful conditions in the workplace and in society in general, and were without sufficient economic and political power to effect change. Those holding that view believed that women deserved and benefited from all the protective legislation they could get. These reformers defined their success as feminists according to how effective they were in getting laws to protect women.

On the other side, though, were reformers who believed there were problems with accepting the idea that women are weaker than men and therefore in need of protection within society. They opposed enacting laws to protect women only and argued instead that all workers could use protection in the workplace when conditions are clearly difficult and dangerous. In addition, they believed that unions could be helpful to workers in winning better pay and working conditions. These differing views of women's rights and workplace regulation were profound and important, and, as Novkov notes, in the 1920s, "feminists were in open and often bitter disagreement with one another concerning the nature of women's liberty" (197).

Novkov believes that the ruling in WEST COAST HOTEL CO. v. PARRISH marked the repudiation of the idea that the relationship between employer and employee is basically private (224). Her thesis is summarized in her statement that "…WEST COAST HOTEL CO. and thus the basic legal framework for the modern welfare state had deep roots in a conversation that had been going on since the 1870s; the outcome and reasoning in the case were not merely the result of the justices' fears that the Supreme Court as an institution was threatened by political hostility in the 1930s" (242).

The writer has made an excellent effort to build her thesis in a comprehensive manner, and she supports her ideas well. Admittedly, the tremendous attention to detail and a lack of chronological markers make the book difficult to read and the arguments hard to follow at times. Novkov focuses on her thesis without considering other cases of the 1930s, and discussion of the relevance of those cases might be an interesting topic for others to explore in further research of Novkov's thesis. The author has provided interesting and provocative arguments that are well-developed for the reader. CONSTITUTING WORKERS provides a perspective that is rich with intellectual substance and important ideas worth pondering.

Copyright 2002 by the author, Gloria C. Cox.