In the Service of the State

Muller v. Oregon and the sexist collectivism of the Progressive movement

Damon W. Root | December 10, 2008

This Monday, the U.S. Supreme Court will host a reenactment organized by the Supreme Court Historical Society of the 1908 case Muller v. Oregon, a landmark Progressive Era decision where the Court unanimously upheld Oregon's law limiting female laundry employees from working more than 10 hours a day. In addition to setting a key precedent later used in defense of the New Deal, the case is notable for the legal brief filed on Oregon's behalf by future Supreme Court Justice Louis Brandeis. Dubbed the Brandeis Brief, this document featured a dizzying parade of arguments and statistics culled from hundreds of different sources, all "proving" that women required special protection by the state.

Today, many on the left celebrate Muller and the Brandeis Brief for striking an early blow against what liberal historian Melvin Urofsky calls "the harsher aspects of industrialization." But there's another, darker side to the story, one that reveals the sexist, racist, and collectivist views held by many leading Progressives.

As Princeton University economist Tim Leonard has argued, "eugenic thought deeply influenced the Progressive Era transformation of the state's relationship to the American economy." For reformers, this translated into an obsession with ridding the labor force of "unfit" workers in order to raise both the wages and the status of the white working class. Economist John R. Commons, for instance, an adviser to Progressive politicians such as Robert M. LaFollette, Theodore Roosevelt, and Woodrow Wilson, described the so-called tropical races as "indolent and fickle" in his book Races and Immigrants in America (1907), where he opposed immigration on both protectionist and racist grounds. Socialist leader Eugene V. Debs put it more bluntly: "The Dago...lives more like a savage or a wild beast than the Chinese," allowing him to "underbid the American working man."

Unlike today's self-styled "progressives," who typically deny that minimum-wage and maximum-working-hour laws throw people out of work, the original Progressives welcomed that result—so long as the regulations were designed to toss the right workers out on the street. As the socialists Sidney and Beatrice Webb argued in their book Industrial Democracy (1897), "With regard to certain sections of the population...unemployment is not a mark of social disease, but actually of social health."

But the Progressives didn't want to restrict just immigrant labor; they wanted to keep women out of the workforce, too. The National Consumers League, for instance, who lobbied for numerous progressive reforms and assisted in the compilation of the Brandeis Brief, opposed publicly funded day care and health care for working mothers in order to nudge more women towards domestic life. As reformer and eugenicist Karl Pearson put it in his 1894 article "Women and Labor": "The answer...does not lie in ‘equality of opportunity,' it lies in special protection, in the socialization of the State."

The Brandeis Brief made much the same point, claiming that since women were responsible for bearing future generations, their bodies were in some sense collective property. "The overwork of future mothers," Brandeis wrote, "directly attacks the welfare of the nation." (It's also worth noting that Brandeis, who was appointed to the Supreme Court in 1916 by Woodrow Wilson, joined in Justice Oliver Wendell Holmes' notoriously eugenicist opinion in Buck v. Bell (1927), which upheld the forced sterilization of those who "sap the strength of the State.")

Writing for the majority in Muller, Justice David Brewer followed Brandeis' lead. "As healthy mothers are essential to vigorous offspring," Brewer wrote, "the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race."

Contrast the blunt statism of that statement, which rejects the fundamental Lockean principle of self-ownership, with the sweepingly libertarian language employed by laundry owner Curt Muller, whose brief declared, "Arguments for freedom of contract and sexual liberty were natural allies; they were branches of the same tree, individualism." As the legal scholar Richard Epstein has remarked, "On this issue, it seems clear that the modern feminist has rightly cast her lot with the libertarian."

To put it another way, the Muller decision and the Brandeis Brief, which will be honored next week by the Supreme Court Historical Society and which are still hailed as landmark legal triumphs by many modern liberals, were each grounded in the worst of the Progressive Era's sexism and collectivism. There's nothing worth celebrating about that.

Damon W. Root is an associate editor at reason.

Comments

</|12.10.08 @ 3:17PM|#

Progressive = Evil

but then we all know that!

|12.10.08 @ 3:18PM|#

"progressive" is a misnomer. They were regressives.

-jcr

Nicolas Adjduer|12.10.08 @ 3:26PM|#

I've never understood why Republicans have never used the HUGE AMOUNT OF FILTHY Progressive history as a tool aginast Liberal and Progressive candidates???

http://www.PleaseBreakTheLaw.com

classwarrior|12.10.08 @ 3:27PM|#

What is really annoying to this progressive is how far back you have to reach to dig up this crap. As if businesses didn't practice rampant discrimination back then, and still do to a lesser degree today. Just ask Lilly Ledbetter. She was paid 40% less than her male counterparts at a Goodyear plant in Alabama. The company wasn't sporting enough to let her know she was being discriminated against, and because she didn't file her complaint within 180 days it first started (decades ago) she couldn't collect damages. Naturally, the US Chamber of Commerce sided with Goodyear.

Progessive movements weren't totally immune from the racism and sexism of earlier eras, but they've cleaned up their act much better than the private sector has. To rely on ancient history like this makes me think the term "intellectually honest libertarian" is an oxymoron.

LibertyMark|12.10.08 @ 3:38PM|#

Lilly Ledbetter voluntarily sold her labor at the price that was offered. It is wholly irrelavent what other people were paid.

But, if she found out that others, regardless of sex, were being paid more, then she could demand a higher price for her labor. If they tell her to pound sand, well, life is shitty sometimes.

|12.10.08 @ 3:38PM|#

Hey, you got your eugenics in my socialism!

Alan Vanneman|12.10.08 @ 3:42PM|#

The whole purpose of legislation regulating women's hours and working conditions was to get around the fact that the courts would not allow legislation regulating all workers' hours and working conditions. Courts fearlessly protected the "right" of coal miners to work 12-hour days with zero health protection. Progressives, shockingly, wanted to improve the negotiating position of the working class. If child labor was banned, and women's hours were restricted, male workers would be less likely to be undercut at the bargaining table.

If you really believe all restrictions on e.g., child labor, unsafe working conditions, etc., etc. should be eliminated, well, fine. But don't wonder why you can't get above 0.03% of the vote.

Simply collecting a lot of "shocking" quotations to prove that Progressives were bad is trivial, and not scholarship. Like pre-WWI conservatives weren't racist, sexist, etc.?

i LOVE this phrase|12.10.08 @ 3:44PM|#

why don't you go pound sand!

Neu Mejican|12.10.08 @ 3:44PM|#

"intellectually honest libertarian" is an oxymoron.

No, but there are some topics where being disingenuous is highly correlated with libertarianism.

Usually comes in the form of simplistic assertions about complex topics.

Dagny T for the thread win, btw.

|12.10.08 @ 3:48PM|#

described the so-called tropical races as "indolent and fickle" in his book Races and Immigrants in America (1907)

That's a feature, not a bug.

|12.10.08 @ 3:48PM|#

What is really annoying to this progressive is how far back you have to reach to dig up this crap.

From the post that you apparently failed to comprehend.

This Monday, the U.S. Supreme Court will host a reenactment organized by the Supreme Court Historical Society of the 1908 case Muller v. Oregon, a landmark Progressive Era decision where the Court unanimously upheld Oregon's law limiting female laundry employees from working more than 10 hours a day.

Ya think the re-enactment of a statist favoring decision might have prompted the article? Maybe?

It easy to understand how you missed the above quoted section, buried as it was in the opening sentence.

|12.10.08 @ 3:51PM|#

Socialist leader Eugene V. Debs put it more bluntly: "The Dago...lives more like a savage or a wild beast than the Chinese," allowing him to "underbid the American working man."

Those fucking WOPs will never be productive members of society, being even worse than chinks. Same goes for the wetbacks.

"As healthy mothers are essential to vigorous offspring," Brewer wrote, "the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race."

Women = brood mares. Nice. To paraphrase Dagny's joke, you got your misogyny in my statist racism.

|12.10.08 @ 3:52PM|#

J sub D,

The oppressed masses don't have time for him to indulge in the bourgeois luxury of reading.

On a sidenote... I'll be so glad when they finally invented a drug therapy to manage liberal guilt. The rest of us shouldn't have to suffer because they can't treat their illness.

LibertyMark|12.10.08 @ 3:56PM|#

Simply collecting a lot of "shocking" quotations to prove that Progressives were bad is trivial, and not scholarship. Like pre-WWI conservatives weren't racist, sexist, etc.?

I'm sure they were. But their racist and sexist behavior is not generally praised and RE-ENACTED (WFT does that MEAN anyway?) as being one of the pinnacles of human achievement.

|12.10.08 @ 3:56PM|#

I dreamed I saw Gene Debs last night,
Alive as you or me
Says I, "But Gene, you're eighty-two years dead,"
"I never died," says he
"I just blog as Lonewacko."

|12.10.08 @ 4:04PM|#

Women = brood mares.

The well-behaved, white women, anyways. All others get sterilizations! Especially chinks. But especially WOPs.

|12.10.08 @ 4:20PM|#

All others get sterilizations! Especially chinks. But especially WOPs.

They could serve as surrogates for the whites! It's brilliant!

|12.10.08 @ 4:20PM|#

Women are never brood mares, even when rich white women pay them to bear their children.

dhex|12.10.08 @ 4:22PM|#

debs had a point. have you seen guidos these days?

|12.10.08 @ 4:26PM|#

You mean like this, Acid Damage?

Rimfax|12.10.08 @ 4:32PM|#

What is really annoying to this progressive is how far back you have to reach to dig up this crap.

Yeah, you have to go all the way back to when they were able to enact their agenda. That's so unfair!

|12.10.08 @ 4:44PM|#

What is really annoying is that progressives refuse to condemn their racist, sexist, eugenicist forebears. They're always the first to condemn southern white anglo-saxons for the slavery, but are simply unable to recognize evil in their own intellectual lineage.

|12.10.08 @ 4:51PM|#

What is really annoying is that progressives refuse to condemn their racist, sexist, eugenicist forebears. They're always the first to condemn southern white anglo-saxons for the slavery, but are simply unable to recognize evil in their own intellectual lineage.

But they meant well.

Kolohe|12.10.08 @ 5:11PM|#

Progessive movements weren't totally immune from the racism and sexism of earlier eras, but they've cleaned up their act much better than the private sector has.

The Big Evil (TM) Railroad companies were on Plessy's side. Granted, it was from the self interest of not wanting to switch around the car configurations during the Chicago to New Orleans transit, but in general, the private sector hasn't given a fig about your race, your religion, or your politics as long as your money was green (and/or gold). Heck, this kind of pragmatic amoralism wrt business is why everyone hated on the jews for the better part of the millenium.

classwarrior|12.10.08 @ 5:47PM|#

Kolohe- As a general rule, businesses don't care about race and gender when accepting someone's money. But often they do care about being able to get away with paying people less because of irrelevent factors such as race and gender because social conditions permit them to, and profit maximization is all they care about, though they wouldn't admit to such unfairness to achieve it.

LibertyMark- yes she accepted those wages but it was not informed consent, which means you are aware of all relevant factors in making a decision. Most people would certainly consider what the company pays others for doing the exact same work as a relevant consideration, and of course companies frown (or worse) upon those who discuss their compensation with coworkers precisely because it undermines their ability to discriminate.

Josh|12.10.08 @ 6:15PM|#

classwarrior -

at what point do you consider it "informed consent" anyways? The internet is wide open for people to get information on the wages that certain jobs typically go for. She doesn't need to know the exact hourly wage of every employee in the company to decide if she's making "enough". She consented to those wages, and she should have left if she didn't like them. Also I believe that an employer can NOT fire you for asking other employees their wages. If she asked off hours discretely they likely wouldn't know anyways. I do it at my jobs.

Kolohe|12.10.08 @ 6:27PM|#

profit maximization is all they care about,

You see this as a bug, I see it as a feature. Why do you think the dodgers brought in Robinson? (which they did btw, before Rosa Parks, before Brown v., before even the army was integrated) The same reason they moved to LA. M-O-N-E-Y. (Incidently per wikipedia: "By 1950 his salary was the highest amount paid to that point in Dodgers history: $35,000" So at least one rapacious capitalist didn't take advantage of social conditions that would have permitted to pay him less)

I believe in the weak EMH (esp over the long term and/or enlarging markets). That is to say, profit maximization won't long allow one to pay substandard wages for above standard work. Sure, in the same way that the laws of thermodynamics don't prevent localized hotter and colder regions in a bulk fluid, emh won't prevent eddies of social retardation. But it won't last - except through the force of the state to back up social conditions, which is what jim crow was all about.

|12.10.08 @ 7:13PM|#

classwarrior -- why are you assuming that her labor was as valuable as her coworkers' labor to her employer? Is it possible that she had a job at the tire factory demanding physical strength, and that she was weaker and thus less productive than others? Or that she was less experienced, and thus again less productive? Or just a really shitty negotiator? If the company could replace men with equally productive women for 40% less, don't you think as rational profit-seeking employers in a competitive marketplace that they'd replace ALL the men with women and dramatically reduce their labor costs?

Do you consider it discrimination that there are NO women players in the NFL? Or a disproportionate number of black players relative to the general population? If the black players earned on average 40% more than the white players, would you consider that discrimination that needed to be legally fixed?

Kolohe|12.10.08 @ 7:33PM|#

A lot of people here don't seem to familar with details of Ledbetter case. There is no doubt she was treated unethically. (and she was doing a job that had no physical qualifications). And but for a technical loophole - that time had expired - she would have a fairly airtight legal case based on how the law is currently written; of course, whether or not the law itself is correct or proper is a completely different issue.

Red|12.10.08 @ 8:13PM|#

Christ, some of you guys would criticize Jesus Christ for being soft on sin.

|12.10.08 @ 8:45PM|#

I've never understood why Republicans have never used the HUGE AMOUNT OF FILTHY Progressive history as a tool aginast Liberal and Progressive candidates???

Maybe because the "progressives" started out in the Republican party?

-jcr

|12.11.08 @ 11:10AM|#

at what point do you consider it "informed consent" anyways? The internet is wide open for people to get information on the wages that certain jobs typically go for.

Didn't have the internet in 1979, skeezix.

Josh|12.11.08 @ 3:21PM|#

"Didn't have the internet in 1979, skeezix."

I was talking about the principle as it applies to modern times.

Regardless that was a minor point.
In free markets, the price TELLS you how much something is worth...you need no other information. If you are ignorant about how much other people are paid in a similar job that's really your own problem. Or at least it should be.

@Kolohe

Ledbetter's case was thrown out because of a technicality, yes, but of course most of us on a libertarian site are going to protest against laws that eliminate the right of someone to choose how much they want to offer for a service. Also there were many other aspects of the actual bill that would change business laws for the worse.

I see absolutely nothing unethical about offering to pay someone a certain amount of money for a product, and they agree. Nothing at all.