Judiciary and Protective and Labor Legislation

Freedom to Contract and Legislative Paternalism

"[T]he unwritten law of this country," wrote Christopher G. Tiedeman in 1900, "is in the main against the exercise of the police power." ³⁰ Historians of an earlier generation accepted Tiedeman's analysis, and they concluded that state and federal courts, influenced by laissez-faire social and economic theory, savaged the paternalistic efforts of legislators to redistribute the costs of industrialization through protective legislation for women, children, and workers in hazardous occupations.

Between 1870 and 1920, the public and the legal community devoted great attention to the thousands of decisions made by appellate judges involving protective legislation. Judges fashioned a new doctrine of freedom or liberty to contract, which echoed the laissez-faire and property rights sentiments of the era. Liberty to contract, which was closely tied to the concept of substantive due process, meant that an individual was free to obtain through private bargaining the best possible terms of employment. The New York Court of Appeals, for example, explained in In Re Jacobs ( 1885) that the state legislature could not impede "the application of the [worker's] industry and the disposition of his labor, and thus, . . . depriv[e] him of his property and some portion of his personal liberty." ³¹ Freedom to contract sprang from the private-contract paradigm that so influenced nineteenth-century law. The doctrine was never absolute, and by the late nineteenth century, at the very time liberty to contract began to have authority in constitutional law, the contract paradigm in private law matters began to erode, because it was ill-suited to large-unit economic development.

Freedom to contract was the major constitutional hurdle that all protective legislation had to negotiate. The results of sustained judicial inquiry produced the same results as in the economic regulation cases: judges in a few spectacular instances, such as In Re Jacobs, overturned legislation, but in the vast majority of cases they left these measures and the police powers upon which they rested intact. Only in matters involving unions were the courts consistently hostile.

-238-

Child Labor and the Courts

In the last quarter of the nineteenth century, child labor statutes became widespread, with much of the support for them coming from labor unions anxious to protect the wages of their adult members. Appellate judges approached these statutes from two traditions. First, the English common law had historically given the father an almost unlimited right to the earnings of minor children, and the parents also enjoyed full powers to contract out the labor of their children. Second, however, because children were not possessed of full legal rights, they also came under the powers of the state as parens patriae (i.e., persons requiring the legal guardianship of the state). By the end of the century judges were relying on this doctrine to exercise fuller control over children in family matters and to approve legislative regulation of child labor.

Even the highly conservative New York Court of Appeals accepted this legislation. In Marino v. Lehmaier ( 1903), for example, the court endorsed a law that forbade the employment of children under sixteen in certain occupations and made it a misdemeanor for parents to consent to such employment. Every child labor regulation brought before the New York court was sustained, and in every other state judges rejected arguments based on freedom to contract, parental rights, and class legislation. ³² "It is competent for the state," wrote the Oregon Supreme Court in 1906, "to forbid the employment of children in certain callings merely because it believes such prohibition to be for their best interest. . . . Such legislation is not an unlawful interference with the parent's control over the child or right to its labor, nor with the liberty of the child." ³³

The Supreme Court was equally accepting of state legislation. Only one case even made it to the Court for review, and in Sturges & Burns Manufacturing Co. v. Beauchamp ( 1913) the justices gave an expansive reading of the police powers in relation to child labor and rejected due-process arguments by the plaintiff. When it came to protecting children, "the legislative judgment carried very far. " ³⁴

The Court, however, was not prepared to permit the Congress, based on the commerce power, to undertake national regulation of child labor, something that reformers wanted because they believed that existing state statutes were laxly enforced. In Hammer v. Dagenhart ( 1918), Justice William Rufus Day, speaking for the Court, overturned a two-year-old statute that prohibited the movement of goods in interstate commerce that were produced by child labor. Nine months later the Congress passed a new statute, which levied a tax on goods produced by child labor, but the Court in Bailey v. Drexel Furniture Company ( 1922) voided it on the grounds that it invaded powers reserved to the states. Subsequent efforts to pass a child labor amendment to the Constitution foundered for lack of votes in the states to ratify it.

Women Workers and the Courts

The courts accorded state legislatures significant discretion under the police powers to write protective legislation for women. Most of this legislation dealt with hours of work and flowed from the assumption that the inherently delicate physical condition of women, and their special place in society as the bearers of the next generation, justified state intervention.

The earliest case involved a Massachusetts law that prohibited the employment of

-239-

women for more than sixty hours per week. In Commonwealth v. Hamilton Manufacturing Company ( 1876), the Supreme Judicial Court sustained the law In a brief opinion that found that "[t]he principle has been so frequently recognized in the Commonwealth that reference to decisions is unnecessary." ³⁵ By late in the nineteenth century, when the tide of opposition to such legislation was fullest, other courts were more hostile. The most famous case was Ritchie v. People ( 1893), in which the Illinois Supreme Court considered the constitutionality of an 1893 statute limiting womens' hours in factories or workshops to no more than eight in any one day and forty-eight in a week. The court held that the measure violated freedom to contract. Judge Benjamin D. Magruder, one of the late-nineteenth-century stalwarts of freedom to contract, concluded that the legislation, because it discriminated against women based on sex, actually harmed them by interfering with their ability to contract for the best possible job arrangements. ³⁶

The Ritchie decision stirred public condemnation. So too did two other prominent judicial decisions striking down hours legislation for women. In People v. Williams ( 1907), Judge John C. Gray of the New York Court of Appeals adopted Magruder's line of reasoning, concluding that a statute prohibiting employment of women in factories between 9:00 P.M. and 6:00 A.M. "overstepped the limits set by the constitution of the state to the exercise of the power to interfere with the rights of citizens." ³⁷ The Colorado Supreme Court in the same year voided a similar statute, although its decision was based on technical grounds rather than freedom to contract. ³⁸

In every other state, the courts sustained women's hour legislation as an appropriate exercise of the police powers. "Surely an act which prevents the mothers of our race from being tempted to endanger their life and health by exhaustive employment," wrote the Pennsylvania Supreme Court in 1900, "can be condemned by none save those who expect to profit by it." ³⁹

The Supreme Court added its endorsement in 1908. The case was Muller v. Oregon. Curt Muller, the owner of a laundry in Portland, appealed a decision by the Oregon Supreme Court that had upheld a law limiting the hours of women workers in factories and laundries to no more than ten per day. Louis D. Brandeis prepared a "sociological brief" that demonstrated through statistics the harm done to women as a result of long hours of work. A unanimous Supreme Court accepted Brandeis's argument, rejecting the argument by Muller's counsel in favor of freedom to contract, and endorsed the long-standing paternalistic attitude toward women by all-male legislatures. Thereafter, state courts consistently upheld this legislation, and both Illinois and New York reversed their previous positions. ⁴⁰

Date: 2015-01-29; view: 728