Working Paper No. 03-26:
Lochner's Feminist Legacy

Author(s):

David Bernstein

Date Posted: 2003

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This essay is a review of Julie Novkov's "Constituting Workers, Protecting Women: Gender, Law, and Labor in the Progressive and New Deal Years". The book, which discusses the controversy over "protective" laws for women, has some important strengths. Novkov deserves praise for considering a wide range of Lochner-era cases and for reading many of the related legal briefs, an often overlooked but extremely important source for constitutional history. Novkov also provides some compelling analysis. For example, she is one of the few scholars to recognize that the liberal Holden v. Hardy and not the strict Lochner v. New York was the leading case on the constitutionality of protective labor legislation case for much of the so-called Lochner era. The book is also very good at its primary task - explaining how considerations of sex affected legal arguments regarding protective laws for workers during the period studied. On the other hand, several flaws make "Constituting Workers, Protecting Women" less valuable than it might have been. First, Novkov pays almost no attention to any form of economic analysis. For example, Novkov never seriously considers whether economic logic suggests that maximum hours laws or minimum wage laws that applied only to female workers actually aided them. Novkov also fails to discuss the empirical evidence regarding the effect of sex-specific protective labor laws. Moreover, Novkov shows no interest in the public choice aspects of protective labor legislation for women, noting only in passing that protective legislation was often promoted by labor unions that excluded women to prevent women from competing for jobs held or sought by union members.

A second problem with "Constituting Workers, Protecting Women" is that its perspective on constitutional change overemphasizes the importance of legal argument at the expense of both important personalities and crucial political developments. For example, remarkably for a book by a political scientist about constitutional law that culminates in the New Deal era, Franklin Roosevelt's name does not appear in the index. A third problem with "Constituting Workers, Protecting Women" is that Novkov overstates the importance of the debate over protective laws for women in the general debate over the constitutionality of police power legislation. And finally, Novkov fails to grapple seriously with the views of judges such as Justice George Sutherland, who invalidated protective laws for women in part because these classical liberal judges sincerely believed in legal equality for women.

Despite the reservations noted above, "Constituting Workers, Protecting Women" is recommended for readers interested in constitutional, labor, and women's history. While it does not deliver everything the author promises, or that this reviewer would have liked to have seen, it is a cogent account of an important legal and historical controversy. The definitive book on protective labor legislation and women during the Lochner era, however, remains to be written.