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.