New York and Illinois, and the federal Supreme Court, with reference
to the constitutional rights of women. Similar differences may appear
with regard to drawing the line between legitimate and arbitrary
discrimination. It is important to observe that the more liberal view
in favor of the legislative power held by the Supreme Court of the
United States is not binding on the states. It is different where the
state courts take the more liberal view. When the Supreme Court decided
that a ten-hour law for bakers violated the fourteenth amendment, the
New York law fell, and similar legislation in all other states was
invalidated or made impossible. If the Supreme Court should decide, as
it probably would, that the prohibition of night work of women does not
violate the fourteenth amendment, the court of appeals of New York,
while it might revise and overrule its own decision to the effect that
such prohibition is invalid, would not be bound to do so, but would
have the right to insist that the constitution of New York protects
individual right against legislative power more effectually than does
the federal constitution. And so it is well understood that the supreme
court of Illinois, in passing upon the validity of the ten-hour law of
that state, copied from the law of Oregon which the Supreme Court of
the United States sustained, is not bound, though it may be properly
influenced, by that decision; the federal authority is persuasive,
but not controlling. This results from the fact that the fourteenth
amendment was enacted as a protection against the abuse of legislative
power, and is not concerned with legislative inaction or impotence,
induced by the construction which the state courts put upon the state
constitution.
In such cases the people of the state have it in their hands to
remove the opposition of their judiciary, by amending their state
constitution so as to permit the desired legislation. This was done
in New York with reference to legislative control of labor performed
in connection with state and municipal works, and in Colorado, with
regard to hours of labor in specified occupations and other branches
of industry which the legislature might deem injurious to health. So
the new constitution of Michigan provides (art. V, § 29) that the
legislature shall have power to enact laws relative to the hours and
conditions under which women and children may be employed. If such
constitutional amendment is adequately framed and the new legislation
conforms to its provisions--in Colorado the supreme court held that
an eight-hour law for women enacted after the amendment fell short of
satisfying the requirements of the amended constitution[72]--there is
nothing but the federal constitution that can be superior to the new
law. If the federal Supreme Court has held that such a law does not
violate the federal constitution, the construction must be binding upon
the state court. True, if the state court should presume to place upon
the federal constitution a construction more unfavorable to legislative
power than the federal Supreme Court, there would be no possibility,
under the federal statutes, of reviewing or reversing that decision,
but it is almost inconceivable that a state supreme court should take
such a position and override the most authentic and authoritative
interpretation of the highest law of the land, provided by that law. As
a matter of fact, such a course has never been taken, and need not be
apprehended.
It is one of the dominant features of our constitutional system
that the nation, except for the regulation of interstate and foreign
commerce, has debarred itself from the active and positive care of
social and economic interests. The other great federated commonwealths
of the world have more liberal provisions in this respect. Germany
has assigned to the imperial power the whole subject of trade and
industry; the Swiss constitution of 1874 mentions as subjects of
federal legislation hours of labor and the care of health in factories;
in Canada the Dominion is given residuary powers which cover the bulk
of industrial legislation, and Australia by a wise provision allows
any two or more of the states to refer to the federal parliament any
matters to be regulated for the referring states jointly. The United
States has by its constitution undertaken to safeguard individual right
as an immunity from governmental oppression, but not as an immunity
from private exploitation which falls short of reduction to practical
servitude. Congress cannot enact protective measures for women in
industry applicable to the nation at large. Its position is in this
respect the same as with regard to child labor. It has been suggested
that the United States might and should debar products manufactured
by child labor from interstate or foreign commerce, and if this were
practicable, women’s work might be controlled in the same way. Such a
legislative contrivance would violate the spirit, if not the letter,
of the constitution, and on that account would meet with strong and
legitimate opposition.
It is undoubtedly an anomaly, that our arbitrary and artificial state
lines should stand in the way of such uniformity of industrial control
as competitive industrial conditions may demand. A certain measure
of unity may perhaps be achieved by the hitherto untried method of
legislative agreements between several states, subject to the consent
of Congress. But under the limitations of state constitutions, such
unity would be a precarious thing, and its possibility has hardly been
discussed.
Considering the action taken by the International Conference on Labor
Regulation at Berne in 1906 in regard to the night work of women,
the question suggests itself whether the treaty-making power might
not be used for the purpose of securing national protection of women
in industry. The Berne convention provides that the industrial work
of women at night shall be prohibited, with a specification of the
number of hours, and subject to certain exceptions particularly set
forth. Suppose the United States had been a party to this convention,
what would have been the effect? Under the federal constitution, the
treaties are the highest law of the land, and treaties of the United
States sometimes deal with subjects otherwise withdrawn from federal
jurisdiction and belonging to the states, so especially with the right
of aliens to hold land. But these treaty provisions are directly
operative without further legislation. This does not appear to be
true of the Berne Convention. For although the convention regarding
night-work uses the word “shall be prohibited” (_sera interdit_)
while the phosphorus convention says the parties “bind themselves
to prohibit” (_s’engagent à interdire_), yet even the night-work
convention leaves it to the signatory states to define what shall be
regarded as industrial enterprises, and therefore is not operative
without further legislation. For the United States the convention
would therefore have been ineffective without the concurrent action
of each state. Even however if a convention should create immediately
operative restraints, they would probably be ineffective in practice
without appropriate administrative arrangements, and these, under
the constitution, can be provided only by the states. On the whole,
the treaty-making power can hardly be relied upon to break down the
barriers created by state autonomy.
Fortunately, however, the work of agitation and public education knows
no state lines, and the national influences which are thus constantly
operative cannot fail to produce a certain uniformity of legislation
which will increase as the wisdom of restrictive or regulative measures
approves itself by their success. In the work of public enlightenment,
the federal government can and does bear its share, since the
expenditure of national funds is not bound by the same limitations as
the enactment of laws intended to bind private action, and since the
constitution, through the provision for the census, lends a direct
sanction to inquiries into social and economic conditions. For the
present, these non-compulsory agencies must be relied upon as the main
forces in the work of unification.
FOOTNOTES:
[46] _Cf. in re_ Bradwell, 55 Ill. 535, Bradwell v. Illinois, 16
Wallace, 130, 1873.
[47] _In re_ Maguire, 57 Cal. 604.
[48] _Ex parte_ Hayes, 98 Cal. 556.
[49] Foster _v._ Police Commissioners, 102 Cal. 483.
[50] People _v._ Williams, 189 N. Y. 131.
[51] 198 U. S. 45.
[52] 208 U. S. 412.
[53] _In re_ Morgan, 26 Col. 415; _in re_ Jacobs, 98 N. Y. 98.
[54] Hutchins and Harrison, _History of Factory Legislation_, p. 187.
[55] Holden _v._ Hardy, 169 U. S. 366, Lochner _v._ New York, 198 U. S.
45.
[56] _In re_ Morgan, 26 Col. 415.
[57] Since this article was written the Illinois supreme court has
declared the ten-hour law constitutional.--Editor.
[58] Hutchins and Harrison, _History of Factory Legislation_, p. 84.
[59] _Ibid._, p. 186.
[60] 155 Ill. 98.
[61] People _v._ Williams, 189 N. Y. 131, 134.
[62] Muller _v._ Oregon, 208 U. S. 412, 421-423.
[63] R. L., 106, § 69.
[64] “The moral dangers of night work are so obvious that they need
only be mentioned: the danger of the streets at night, going to and
from work, association with all kinds of men employes at late night
hours; the difficulty for women who are away from their families, of
living at respectable places and entering at night hours; the peril
of the midnight recess in establishments that run all night long.”
Josephine C. Goldmark, _Annals American Academy of Political and Social
Science_, v. 28, p. 64.
[65] Hutchins and Harrison, p. 85.
[66] Hutchins and Harrison, pp. 209-211.
[67] Connolly _v._ Union Sewer Pipe Co., 184 U. S. 540.
[68] _Report_ 1907, p. 49.
[69] _Charities and the Commons_, v. 17, p. 839.
[70] Schaezlein _v._ Cabaniss, 135 Cal. 466.
[71] Buttfield _v._ Stranahan, 192 U. S. 470, standards of quality of
tea; Isenhour _v._ State, 157 Ind. 517, minimum standards of food and
drug preparations, defining specific adulterations; Arms _v._ Ayer, 192
Ill. 601, determining number and location of fire escapes.
[72] Burcher _v._ People, 41 Colo. 495. The reasoning of the decision
is in some respects obscure, and the case cannot be regarded as
typical.
THE ILLINOIS TEN-HOUR DECISION[73]
JOSEPHINE GOLDMARK
National Consumers’ League
It was a unique episode in the history of American labor legislation,
when in February, 1910, two distinguished lawyers joined the state
officials of Illinois in a defense of the ten-hour law before the
state supreme court. Both gentlemen--Mr. W. C. Calhoun, the then newly
appointed ambassador to China, and Mr. Louis D. Brandeis of Boston, who
had won prestige in successfully defending a similar law before the
United States Supreme Court two years earlier--gave their services, a
free gift to the wage-earning women of Illinois, and to those of such
other states as may establish by law the ten-hour day in industry, in
consequence of the favorable Illinois decision.
The statute in behalf of which these two public-spirited lawyers
appeared, at great personal sacrifice, was enacted by the legislature
of Illinois in 1910, and restricts to ten hours the working day of
women employed in factories, mechanical establishments and laundries.
Similar legislation has been in force in England since 1847, in
Switzerland since 1877, in Germany since the early nineties, in France
since the beginning of the present century. In our own country,
Massachusetts enacted a ten-hour law as early as 1876, and the supreme
courts of four states--Massachusetts, Nebraska, Washington and
Oregon--as well as the Supreme Court of the United States itself, have
sustained the constitutionality of such laws.
Why then should a measure, so long tested by human experience and so
obviously necessary in Illinois, the third manufacturing state in the
Union, require so earnest and determined a defense? The answer to this
query is found in the favorable decision of the Illinois Supreme Court,
handed down in April, 1910. It was the necessity of putting the case so
strongly before the court that it might reverse its earlier decision
of 1895. Fifteen years ago, the Supreme Court of Illinois in what is
known as the case of Ritchie _v._ The People, held that no restriction
whatever could be placed upon the working hours of adult women employed
in manufacture. The earlier statute had established the eight-hour day
for women employed in manufacture. It was held unconstitutional and
void, as a violation of individual freedom of contract. The present
statute establishes for the same classes of workers the ten-hour day.
The same principle is involved in both laws, namely, that the working
hours of adult women may be restricted by the legislature.
In its recent decision, holding that the ten-hour statute is a valid
exercise of the police power of the state and is not in violation of
the constitution of the state of Illinois, the supreme court lays
stress upon two points: first, that the present statute is a health
measure and is so described in its title and in its text, while neither
the title nor the text of the former eight-hour law, annulled in 1895,
specifically stated its relation to the subject of health; second,
that the present statute permits ten hours’ work in twenty-four,
while the former one permitted but eight hours. These two points call
for scrutiny and consideration. In future every ten-hour bill for
women should be entitled a health measure, as in fact it is. This
precaution costs neither time, money nor effort. Yet it may save the
law when on trial before a court of last resort upon the charge of
unconstitutionality.
The second point is more difficult. If in general the principle
is accepted that statutes restricting the working hours of adult
women must be obviously and convincingly health measures, then the
enactment of future eight-hour bills and nine-hour bills might well
be accompanied by the preparation of briefs showing the necessity
for the statutory shortening of the working day as overwhelmingly
as the Brandeis brief filed in the Illinois case proved the point in
the present instance. The specific statement in the present decision
that what judges know as men, they cannot profess to ignore as judges,
emphasizes the need of presenting to them the underlying social and
medical facts upon which legislation restricting women’s working hours
is fundamentally based.
The effectiveness of this procedure is shown by the experience of
the past two years. In January, 1908, Mr. Brandeis filed with the
Supreme Court of the United States, in defense of the Oregon ten-hour
law, a brief of one hundred and twelve pages, showing the action and
opinion of European nations and some American states governing the
working hours of women in the interest of the public health. His oral
plea on that occasion followed the same lines. The decision of the
court, written by the late Justice Brewer, was unanimous, sustaining
the statute and specifically stating that the court took “judicial
cognizance” of the “facts of common knowledge” brought before them. In
the recent Illinois case, Mr. Brandeis’s brief contained more than six
hundred pages of similar information gathered during the past year by
the writer under an appropriation from the Russell Sage Foundation.
These two decisions pave the way for an immediate nationwide campaign
for the ten-hour day for women employed in factories, mechanical
establishments and laundries in all those industrial states which have
not yet enacted such laws. A similar campaign is sorely needed in many
states in order to extend to women in stores, offices, telegraph and
telephone services, trade and transportation, the benefits already
enjoyed by their sisters employed in manufacture.
The National Consumers’ League has already enlisted for this campaign,
placing well to the fore in its program for the decennial period
1910-1920 the enactment of such laws.
FOOTNOTES:
[73] [By special request of the editor, Miss Goldmark has prepared this
brief comment on the Illinois decision, pointing out its practical
lessons without discussing the legal points involved. As is well known
to students of protective legislation, only the remarkable work of Miss
Goldmark in collecting and marshaling the mass of evidence scattered in
all sorts of documents both in this country and abroad made possible
the briefs that resulted in the sustaining of both the Oregon and the
Illinois law.--EDITOR.]
A SELECTED LIST OF BOOKS AND PAMPHLETS IN THE ENGLISH LANGUAGE ON WOMEN
IN INDUSTRY[74]
COMPILED FOR THE WOMEN’S TRADE UNION LEAGUE BY
CAROLA WOERISHOFFER
EDITED BY
HELEN MAROT
ABBOTT, EDITH. Women in industry; a study of American economic history.
N.Y.: Appleton. 1909.
[The history of women in industry in the United States. Also the
cotton, shoe, printing, clothing and cigarmaking trades in their
relation to women.--Contains a bibliography.]
ABRAHAM, M. E. & DAVIES, A. L. The law relating to factories and
workshops. London: Eyre & Spottiswoode. 1901.
[English law.]
American association for labor legislation. Proceedings of ... annual
meeting, 1907-date. N. Y.
AUSTIN, C. B. Administration of labor laws 1909. N. Y.: Am. assoc. for
labor legislation. 1909.
BAYLES, G. J. Woman and the law. N.Y. Century. 1901.
[Statements and summaries of different state laws relating to the
employment of women.]
BLACK, CLEMENTINA. Sweated industry and the minimum wage. London:
Duckworth. 1907.
BOUCHERETTE, JESSIE, and others. Condition of working women and factory
acts. London: Stock. 1896.
[Purpose of the work is to prove that hardships result to women from
trade unions and factory acts.]
BRANDEIS, L. D. Women in industry; discussion of the U. S. Supreme
Court in the case of Curt Muller _v._ state of Oregon, upholding the
constitutionality of the Oregon ten-hour law for women and brief for
the state of Oregon. N. Y.: National consumers’ league.
BRANDEIS, L. D. & GOLDMARK, JOSEPHINE. Brief and argument for
appellants in the supreme court of the state of Illinois. N. Y.:
National consumers’ league.
[Legislation restricting the hours of labor for women, American
legislation, foreign legislation, dangers of long hours, causes and
effects of fatigue, effect of hours on health, safety, morals and
general welfare, benefit of short hours, remedies, regulations and
restrictions.]
BULLEY, A. A. & WHITLEY, MARGARET. Women’s work. N.Y.: Scribner. 1894.
(Soc. quest. of today ser.)
[Treats of women and trade unions in the textile and other trades,
influence of occupation on health, infant mortality, legislation.]
BUTLER, E. B. Women and the trades; Pittsburg 1907-08. N.Y.: Charities
publication committee. 1909.
[The report of a full investigation of the conditions of work of women
in Pittsburg.]
CADBURY, EDWARD, and others. Woman’s work and wages. London: T. Fisher
Unwin. 1906.
[Detailed analysis of conditions and wages of working women in the
different trades open to them in Birmingham, England; together with
suggested remedies for existing evils and descriptions of women’s
trade unions, girls’ clubs, etc., in Birmingham.]
CAMPBELL, HELEN. Prisoners of poverty; women wage-workers, their trades
and their life. Boston: Roberts. 1887.
[A record taken from life in New York.]
---- (same). Prisoners of poverty abroad. Boston: Roberts. 1889.
[Women wage-earners in London.]
---- (same). Women wage-earners. Boston: Roberts.
[Women as wage-earners in the past; conditions and wages in Europe
and the United States; remedies and suggestions for evils. Includes a
bibliography.]
Canada. Department of labor. Report of the royal commission on a
dispute respecting hours of employment between the Bell telephone
company of Canada ltd. and operators at Toronto, Ont. Ottawa. 1907.
[Report on a strike of women telephone operators.]
CANDEE, H. C. How women may earn a living. N.Y.: Macmillan. 1900.
[Consideration of various industries and the opportunities they afford
women workers.]
CHAPMAN, S. J. The Lancashire cotton industry. Manchester: University
press. 1904.
[Deals briefly with women in the weaving and spinning trades, the
attitude of trade unions, the ratio of women workers in the cotton
industry in 1838 and 1901.]
COLLET, C. E. Educated working women; essays on the economic position
of women workers in the middle classes. London: P. S. King. 1902.
Fabian society. Life in the laundry. London: Fabian society. 1902.
[Deals with unsanitary conditions, excessive hours, defects in
legislation and legislative remedies.]
FORD, I. O. Women’s wages and the conditions under which they are
earned. London: Reeves. 1893. (Humanitarian league pub.)
Great Britain. Board of Trade, Labour Department. Employment of women.
London. Eyre & Spottiswoode. (Great Britain. Parliament. Sessional
Papers.)
Report on the statistics of employment of women and girls, by Miss
Collet. 1894.
Report on changes in the employment of women and girls in industrial
centres, by Miss Collet. 1898.
Great Britain. Royal Commission on Labour. Employment of women. Reports
on the conditions of work in various industries in England, Wales,
Scotland and Ireland, by the Misses Orme, Collet, Abraham and Irwin.
London. Eyre and Spottiswoode. 1898. (Great Britain. Parliament.
Sessional Papers.)
HANSON, W. C. Report of the work of the Mass. inspector of health,
November 1907-1908. Boston; State board of health.
HARRISON, A. Women’s industries in Liverpool. Liverpool: Liverpool
university press.
HERRON, B. M. The progress of labor organizations among women, together
with some considerations concerning their place in industry. University
of Illinois studies, v. 1. Urbana: University press, 1905.
[Unions specially considered: bakers’, typographical, bookbinders’,
teachers’, potters’, lithographers’, also garment, textile, glove,
cigar, laundry, boot & shoe, building, metal workers’; also label
leagues and Women’s trade union league.]
HUTCHINS, B. L. Home work and sweating, the causes and the remedies.
London: Fabian society. 1907.
HUTCHINS, B. L. & HARRISON, B. A. A history of factory legislation.
London: P. S. King. 1903.
Illinois. Bureau of labor statistics. Biennial report, 1892.
Springfield.
[Various statistical details referring to the work, wages and welfare
of the working women of Chicago, employed in the factories and other
industrial groups.]
International association for labour legislation. Bulletin of the
international labour office, 1906-date. London: Labour representation,
printing and publishing co.
---- (same). Bulletin of the international labour office. Supplement,
bibliography. Jena: G. Fischer. 1909.
IRWIN, M. H. Home work amongst women. Glasgow: Women’s industrial
council. 1901.
JACOBI, ABRAHAM. Physical cost of women’s work. N. Y.: Charity
organization society. 1907.
KELLY, FLORENCE. Some ethical gains through legislation. N. Y.:
Macmillan. 1905.
[A chapter on the necessity for and the right to leisure; a chapter on
shorter working hours through legislation.]
London County Council. Report of the educational committee of the
London county council, submitting report by the chief inspector
presenting reports on women’s trades compiled by the late inspector of
women’s technical classes (Mrs. G. M. Oakeshott). London: P. S. King.
1908.
[Contains reports on artificial flower making, corset making,
dressmaking, lace making and mending, ladies’ tailoring, laundry work,
millinery, photography, ready-made clothing, surgical instrument
making, orthopædic appliances, etc., upholstery and waistcoat making.]
MACDONALD, J. R. (Editor). Women in the printing trades. London: P. S.
King. 1904.
[General consideration of women in the different branches of the
printing trade in their relation to men, trade unions, industrial
training, legislation and wages.]
MACLEAN, A. M. Wage-earning women. N. Y.: Macmillan. 1910.
[A study of women in leading industries in various parts of the
country, being results of a national investigation conducted by the
author under the auspices of the national board of the Y. W. C. A.]
MALLET, C. Dangerous trades for women. London: Reeves. (Humanitarian
league pub.)
[The white lead trade and match factories.]
MEAKIN, A. M. B. Women in transition. London: Methuen. 1907.
[General references to women’s economic position and some special
references to trade unions and the woman wage earner.]
National union of women workers of Great Britain & Ireland. Women
workers; papers read at the conference held in Manchester, October,
1907. London: P. S. King.
[Women as skilled and unskilled workers; educated and married women;
trade unions and coöperative movements among women.]
New York (State). Bureau of statistics of labor. 3d annual report,
1885. Albany.