Why Is Obama Championing Sexist Progressive Era Laws?

George Mason University law professor David Bernstein flags a notable moment from President Barack Obama's big speech yesterday celebrating Theodore Roosevelt and his "New Nationalism." As Bernstein observes, Obama pointed to Roosevelt's support for a minimum wage law for women as evidence of his do-gooder bona fides, despite the fact that modern scholars have unearthed all sorts of ugly facts about the true origins of gender-specific wage controls in the Progressive era. As Bernstein writes:

The history of such laws is not pretty. The laws' primary supporters included male-only labor unions that wanted to keep women out of the workplace…; eugenicists who wanted women to stay home and take care of their children; bigots who thought that only the lower order of men (including Eastern European immigrants) would allow their women to work for wages; moralists who believed that low-wage women were susceptible to vice and should therefore stay out of the workforce; and economists who believed that, as Felix Frankfurter summarized in his brief in Adkins v. Children's Hospital, women who wanted to work but could not command a government-imposed minimum wage were "semi-employable" or "unemployable" workers who should "accept the status of a defective to be segregated for special treatment as a dependent."

The point about using wage controls to keep women out of the work force is worth repeating because, unlike today's liberals, the original Progressives accepted the fact that minimum wage laws (and other labor regulations) often threw people out of work. In fact, Progressive era reformers actually welcome that result, so long as the regulations served to toss the right sort of people out of the workforce. 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."

Progressive era maximum working hour laws for women served the same ignoble purpose. Consider perhaps the most famous legal document of the time: the so-called Brandeis Brief submitted by future justice Louis Brandeis in the 1908 Supreme Court case of Muller v. Oregon. At issue in Muller was the constitutionality of a state law limiting female laundry employees from working more than 10 hours per day. In the brief he submitted on Oregon's behalf, Brandeis patched together a wide assortment of arguments and statistics allegedly "proving" that women required special protection from the state. Among other things, the Brandeis Brief argued that since women were responsible for giving birth to future generations, their bodies represented a form of collective property. "The overwork of future mothers," Brandeis wrote, "directly attacks the welfare of the nation." That argument is of course the antithesis of modern feminism, which rightly puts individual self-ownership before any duty to the state or collective.

This isn't the first time Obama has peddled junk history, of course, and I fear it won't be the last. Still, it would be nice if he—or at least a few of his speechwriters—spent a little more time studying.