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Book Review
| Julie Novkov, Constituting Workers, Protecting Women: Gender, Law, and Labor in the Progressive Era and New Deal Years, Ann Arbor: University of Michigan Press, 2001. Pp. xii + 320. $44.50 (ISBN 0-472-11198-1).
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| This book surveys approximately two hundred state and federal cases that tested the constitutionality of laws regulating wages, hours, and working conditions in the United States between 1873 and 1937 to argue that "much of the doctrinal framework for the modern interventionist state arose through battles over female workers' proper relationships with the state" (13). The author frames the study as a reinterpretation of the Supreme Court's 1937 ruling in West Coast Hotel v. Parrish, which laid a cornerstone in the legal foundation of the American welfare state by upholding a Washington state minimum wage law for women. Most constitutional scholars have interpreted West Coast Hotel as an abrupt shift in doctrine born of Depression-era political and economic crises, but Novkov stresses that this "constitutional revolution" had deep roots in the past, "picking up and extending old doctrine" (14) more than creating new principles. Excavating the roots of West Coast Hotel leads Novkov to conclude that "a largely middle-class, feminine effort to regulate the labor of working-class women during the early twentieth century shaped the development of the jurisprudence of due process" (3). This point will be familiar to those acquainted with the rich literature on sex-based labor legislation and the women who fought for and against it. But Novkov is less interested in women's activism or women's labor than in how gendered assumptions and arguments drove the development of constitutional doctrine. |
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Novkov calls the years between 1873 and 1937 a "period of negotiation" when courts confronted the efforts of lawyers, employers, and reform groups to "balance and channel the tensions and conflicts inherent in the rise of a modern industrial economy and a modern regulatory state" (14). In the context of industrialization's upheavals and the open-ended language of the Fourteenth Amendment, the legal system grappled with the balance between the state's due process and police power obligations, in other words, balancing workers' due process right to "liberty of contract" against the state's regulatory authority to protect public health. Novkov proposes to analyze the production of doctrine by examining not simply judicial outcomes or the language of opinions but "nodes of conflict," or the "contested narrative space" (16) in which court decisions took place. Thus her stage includes attorneys and "lay activists" as well as judges. This situation of legal change in its social context will be appreciated by historians, although other scholars have done as well without the "nodes of conflict" apparatus. |
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Novkov subdivides her period into four phases and devotes a chapter to each. Throughout the period, laws regulating women's labor were much more likely to be upheld than general labor laws (which were formally gender-neutral but chiefly affected male occupations). But the role of gender changed over time. The first phase, 1873–1897, was one of "generalized balancing" of the liberty and property interests inherent in due process against the state's police power. Debates in this stage remained within the legal community, she finds (although she hints at manufacturers' influence). The legal reasoning was based largely on factors other than gender, and cases involving women did not set the terms of debate. In the second phase, 1898–1910, a separate analysis began to emerge for women-only regulations, contributing to a shift in focus from the nature of the labor (was mining, baking, or cigar-making in tenements especially hazardous) to the nature of the laborer (did some workers have different capacities to exercise liberty). Novkov shows how a group of seemingly minor cases affecting female employees in saloons set a precedent by linking female employees, morality, and public health. This era also saw the rise of sociological jurisprudence. Novkov reviews the contribution of women reformers in the National Consumers' League in gathering factual data and formulating arguments about the public interest in working hours, most famously in the "Brandeis brief" for the 1908 Muller v. Oregon case. Ruling that working long hours posed special risks to women's health and therefore to the health of the next generation, Muller "confirmed the public significance of women and of their bodies particularly" (121) and established male labor as the (private) norm and female labor as an exception that warranted its own jurisprudence. The third period, from 1910 to 1923, saw the "ascendancy of women's legislation" and "laborer-centered analysis," and the final period ended with West Coast Hotel, which opened the door to extending regulation to men. Novkov divides the tangle of arguments made for women's regulations into three types, stressing, respectively, motherhood, physical health, and structural factors undermining employee bargaining power. In all categories, some arguments stressed women's immutable differences from men whereas others emphasized socially constructed differences; many arguments potentially applied to men as well as women. Novkov shows how goals and gender-based reasoning varied among feminists and non-feminists on both sides of the regulatory fight. Ultimately, arguments that were developed with respect to women transformed the way the legal system conceived of the labor market, by showing how "private" employment terms affected the public interest, and how regulation could enhance workers' liberty (to bargain on equal terms with employers) rather than reducing it. |
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A lack of historical context weakens Novkov's analysis in places. She does not discuss the 1937 cases that upheld the National Labor Relations Act, which according to most scholars produced a shift from police power to commerce clause justifications for federal labor standards regulation. She does not evaluate legal arguments in the context of labor market realities; so, for example, she gives undue credence to the anti-regulationist claim that minimum wages for women would make them unable to compete with men for jobs (in fact, women's wages were so low, and occupational sex-typing was so strong, that men rarely took women's jobs). She commendably analyzes how workers' gender shaped legal strategies and outcomes, but she might have extended her insight to include race; her southern cases about working conditions in boiler rooms or sawmills probably involved black men. The forces of legal change remain impersonal; the reader learns little about the few individuals named in the text, and less about particular employer interests. |
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Many of Novkov's claims have been made before. She neglects the work of Clement Vose, Susan Lehrer, Joan Zimmerman, and Vivien Hart on the major test cases, and she overlooks most recent scholarship on some of her key actors, the National Consumers' League, the Women's Trade Union League, and the National Woman's Party (including the work of Kathryn Kish Sklar, Annelise Orleck, Wendy Sarvasy, and the author of this review). Engagement with this scholarship would have refined and enlivened Novkov's study considerably. The book is most valuable for its consideration of so many cases, both state and federal, involving laws that applied to both women and men. This broad sweep enables the author to show how the landmark cases often merely confirmed earlier developments, to show gender operating in cases affecting men as well as women, and to trace the changing impact of cases involving female workers. Novkov's book will be of most interest to constitutional scholars seeking to understand how "the roots of modern employment law and of modern doctrine on liberty have grown in deeply gendered ground" (35). |
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| Landon R. Y. Storrs
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| University of Houston |
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