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Constituting Workers, Protecting Women

Gender, Law and Labor in the Progressive Era and New Deal Years

Julie Novkov

Publication Year: 2001

Constitutional considerations of protective laws for women were the analytical battlefield on which the legal community reworked the balance between private liberty and the state's authority to regulate. Julie Novkov focuses on the importance of gender as an analytical category for the legal system. During the Progressive Era and New Deal, courts often invalidated generalized protective legislation, but frequently upheld measures that limited women's terms and conditions of labor. The book explores the reasoning in such cases that were decided between 1873 and 1937. By analyzing all reported opinion on the state and federal level, as well as materials from the women's movement and briefs filed in the U.S. Supreme Court, the study demonstrates that considerations of cases involving women's measures ultimately came to drive the development of doctrine. The study combines historical institutionalism and feminism to address constitutional interpretation, showing that an analysis of conflict over the meaning of legal categories provides a deeper understanding of constitutional development. In doing so, it rejects purely political interpretations of the so-called Lochner era, in which the courts invalidated many legislative efforts to ameliorate the worst effects of capitalism. By addressing the dynamic interactions among interested laypersons, attorneys, and judges, it demonstrates that no individuals or institutions have complete control over the generation of constitutional meaning. Julie Novkov is Assistant Professor of Political Science, University of Oregon

Published by: University of Michigan Press


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pp. vii

List of Tables

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pp. ix-x

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pp. xi-xii

A first book is not, for most people, a solo effort. I have been quite fortunate to have the generous and unstinting support of many individuals since beginning this project as a graduate student at the University of Michigan. Without the help of many of these people and institutions, this book would not exist...

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1. Rethinking the Constitutional Crisis of the 1930s: The Forgotten Doctrinal Roots of the Modern Welfare State

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pp. 1-35

In many scholars’ views, the modern American welfare state, with its myriad protections for workers and citizens, was born on March 29, 1937. On that date, the U.S. Supreme Court announced its ruling in West Coast Hotel v. Parrish, a case that later courts would interpret to eliminate the constitutional barriers to the states’ efforts to establish...

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2. Generalized Balancing: The Early Struggles over Protective Labor Legislation

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pp. 37-75

This chapter analyzes the way that the courts in the United States dealt with protective legislation between 1873, when the Supreme Court decided Bradwell v. Illinois, 1 and 1897, the year before the Court decided Holden v. Hardy. 2 In this period, the nodes of conflict that were to consume the courts at the turn of the century began...

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3. Specific Balancing: Regulating Labor and Laborers

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pp. 77-129

The years between 1898 and 1910 witnessed significant developments in the battle over protective labor legislation both with regard to general measures and with regard to laws aimed at protecting female workers. The initial debates of the late 1900s now developed into full-scale nodes of conflict with the increased participation...

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4. Laborer-Centered Analysis: The Ascendancy of Women's Legislation

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pp. 131-182

This period of the study encompasses the most active time for consideration of women’s protective labor legislation and marks the point at development of doctrine. During these years, groups advocating for protective legislation worked directly in the legal arena, developing their agendas for research to address the legal categories that judges...

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5. Gendered Rebalancing: Minimum Wages and the Battle over Equality

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pp. 183-239

This chapter addresses the final portion of the period of negotiation.The final period began with the Supreme Court’s controversial ruling in 1923 that the District of Columbia’s establishment of a minimum wage for women was unconstitutional. This ruling initiated a sustained debate over the legitimacy of minimum wages, which took place in the...

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6. Reflecting on Gender, Due Process, and Constitutional Development

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pp. 241-273

At the beginning of the twenty-first century, we stand on a threshold, looking back into a collective past, seeking to imbue it with meaning. Many who consider themselves to be liberal see the recent past as the shredding of the legacy of the Warren Court and embrace the tattered remnants of a lost tradition of struggle. Many who consider themselves...

Appendix on Data and Methods

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pp. 275-276


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pp. 277-296

Bibliography: Legal Briefs

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pp. 277-284

Bibliography: Materials from the Women's Movement and Other Contemporary Sources

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pp. 284-288

Bibliography: Secondary Sources

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pp. 288-296

Cases Cited

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pp. 297-305

Cases Cited: Federal Cases

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pp. 297-299

Cases Cited: State Cases

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pp. 299-304

Cases Cited: Cases Decided after West Coast Hotel v. Parrish

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pp. 304-305


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pp. 307-320

E-ISBN-13: 9780472022861
E-ISBN-10: 0472022865
Print-ISBN-13: 9780472111985
Print-ISBN-10: 0472111981

Page Count: 336
Illustrations: 1 drawing, 14 tables
Publication Year: 2001