On Whiggish Constitutional History and the History of Women’s Constitutional Equality

Attorney Rob Weiner has a guest post over at Balkinization decrying challenges to the ACA. Weiner claims that the challenges reflect nostalgia for a bygone era and discredited doctrines. I disagree for reasons that have been repeated many times on this blog (essentially, the challengers are attacking a broad new and novel expansion of federal power, not asking the Court to revive old doctrines).

Instead of rehashing those arguments I wanted to note an irony in Weiner’s post, one that reflects the Whiggish (and incorrect) views that constitutional law has progressed in a linear fashion from the reactionary “bad old days” to more enlightened doctrines.

Toward the beginning of his piece, Weiner writes:

It was the same freedom of contract that the Court in Adkins v. Children’s Hospital invoked to shield employers from the minimum wage law. But that was in 1923. In the modern era — generously, the last 75 years — the Supreme Court repudiated these cases and gave Congress broad deference in the realm of economic regulation. Starting in 1937, the Court in West Coast Hotel Co. v. Parrish ended the primacy of contract rights. “What is this freedom?,” Chief Justice Hughes asked there. “The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. . . . Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.”

Adkins and Parrish both involved minimum wage laws that applied only to women. This was so for a variety of reasons, but most importantly various groups that supported such laws–male-only trade unions, “maternalists” and eugenicists who believed that women’s place was in the home, foes of immigration who believed that the foreign-born were especially like to encourage their wives to work, “family wage” supporters who believed that women workers drove down men’s wages, among others–explicitly sought to exclude women from the workplace, and thought minimum wages were a good way to do so. Male-only labor unions, for example, broadly opposed minimum wage laws that applied to men, but typically supported them for women because they wanted to eliminate labor market competition.

None of this is a secret to those familiar with the history. The leading supporter of women’s rights on the Court, Justice George Sutherland (a leading supporter of women’s suffrage in the 1910s, and an adviser to the drafters of the ERA), wrote the majority opinion in Adkins and the dissent in Parrish. Meanwhile, Florence Kelley, the great early twentienth century advocate for “protective” laws for women, wrote in defense of such laws, in language that could have been appropriated by Phyllis Schlafly in the 1970s in her campaign against the ERA, “the cry Equality, Equality, where Nature has created inequality, is as stupid and as deadly as the cry Peace, Peace where there is no Peace.”

This history eludes Weiner, who later opines that in “the supposedly good old days” when the courts protected liberty of contract to some degree, “Minorities could not get a fair shake. Women, for the most part, did not even try.” In fact, women did often try, but they were often stifled by “Progressive” laws banning them from night work, restricting their hours, restricting them from “dangerous” or “immoral” jobs like bartending (“Michigan could, beyond question, forbid all women from working behind a bar,” wrote Justice Felix Frankfurter in 1948), and imposing minimum wages on them while exempting their male competitors.

History, in short, did not move in a straight line from reactionary opposition to women’s rights in the 1920s to enlightened liberal support for such rights in the modern era. Rather, cases like Parrish represented a significant setback for women’s rights, and women only started to reclaim the constitutional ground they lost in the 1930s and 40s decades later.

Not surprisingly, the history of “minorities”, “workers” and other groups referenced by Weiner is also far more complex than the Whiggish story would suggest.

The great irony of Weiner’s post is that while he accuses the ACA’s opponents of misunderstanding history, his hostility to the ACA challenges seems based on his misapprehension of history–if one accepts the premise that nothing good happened in constitutional law until the “Progressives” took over the Supreme Court in the 1930s, and nothing bad came from the Progressives thereafter (maybe except for Korematsu) then it’s understandable that one would be suspicious of any argument that even remotely hints at doctrines that were prevalent before then. But if one takes a more sober look at constitutional history, it turns out that there has been no linear progression of enlightenment, and the side Weiner identifies with historically did not have a monopoly on virtue. And once that is accepted, it becomes a lot easier to consider the constitutional arguments for and against the ACA on their merits, without invoking the ghosts of the past.

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