A Woman's Wage: Historical Meanings and Social Consequences

2. Law and a Living: The Gendered Content of “Free Labor” in the Progressive Period

2 Law and a Living The Gendered Content of “Free Labor” in the Progressive Period What could possibly be more contemptible than the question; “What is the least sum on which an honest girl can keep body and soul together and escape disgrace?” —Florence Kelley1 Supreme Court decisions are frequently unpopular. Yet few have faced the storm of national derision that confronted the April 1923 opinion handed down in Adkins v. Children’s Hospital. By a vote of 5 to 3 (Brandeis abstaining), the Court negated the constitutionality of a Washington, D.C., law that provided minimum wages for women and minors. With its act the Court also placed in jeopardy the minimum wage legislation of thirteen other states.2 Newspaper editorials, public meetings, and placards denounced the decision. Mary Anderson, head of the Women’s Bureau, called it “nothing short of a calamity.”3 Samuel Gompers declared it to be a “logical next step in perfecting the doctrine that those who cannot help themselves shall not be helped.”4 The New York World ran a cartoon that depicted Justice Sutherland handing the document to a woman wage earner, with the caption, “This decision, madam, affirms your constitutional right to starve.”5 In the immediate aftermath of the decision , the National Women’s Trade Union League called a conference 32 a Woman’s Wage to stave off what it feared would be “a wholesale reduction of wages for more than 1,500,000 women and girls.”6 The “greatest wrong” in the decision, as Gompers and others pointed out, was that in describing labor as a commodity to be bought and sold Justice Sutherland had likened “the labor of a woman to the purchase of a shinbone over the counter to make soup.”7 Henry Seager, respected professor of economics at Columbia University, fulminated that the decision “represents a menace to the stability of our established institutions vastly more serious than that of socialists, communists, bolshevists, or any other group of ‘labor agitators.’”8 Many opponents of the decision decried the Court’s power to declare laws unconstitutional or urged that it be severely restricted. Henceforth, they suggested, six or seven rather than a bare majority of five justices should be required to repudiate any state law.9 The response might have been louder because the decision was apparently so unexpected. Fifteen years earlier, in Muller v. Oregon, the Court had accepted the principle that women’s health was a proper subject of state concern and therefore of state regulation.10 In the wake of that decision, most industrial states had taken it upon themselves to regulate the hours and working conditions of women and minors. These laws, quintessentially progressive in that they attempted to redress the imbalances of rapid industrial growth, had withstood many legal challenges and, just a year after Adkins, were to survive another. Though states were more cautious when it came to regulating wages, thirteen states and the District of Columbia had enacted minimum wage laws before 1923. Each was grounded in the assumption that the needs of working women for food, clothing, and shelter could be accurately determined and in the desire to maintain women’s health and protect their morals by establishing wages at a level “adequate to supply the necessary cost of living.”11 Minimum wage laws varied. Some set wage levels. Others established regulatory commissions to determine appropriate wages. Some provided legal penalties for violators. Others relied on public exposure to inhibit transgression. They had weathered many challenges in state courts. And, in 1917, the U.S. Supreme Court, in an equally divided vote, affirmed an Oregon Supreme Court decision to uphold its minimum wage law.12 These successful defenses of minimum wage laws Law and a Living 33 led one commentator to note in 1921 that “no successful attack can be anticipated upon the principle of these laws in view of the absolute uniformity with which they have been maintained in the different states when pressed to a decision in the court of last resort.”13 Moreover, they were popular. Even after Adkins, states like Massachusetts and Washington continued to enforce their statutes, hoping to evade legal challenges ; others, like New York, passed new laws.14 Why then had the Court so unexpectedly countered what seemed like a well-established trend? The answer may lie in the competing paradigms embedded in the issue of minimum wages for women. Decisions...