by Jill Lepore
The Lochner decision intensified the debate about judicial review that had begun with Marbury v. Madison in 1803. Critics charged conservatives with “putting courts into politics and compelling judges to become politicians.” Meanwhile, Progressives painted themselves as advocates of the people, and, continuing a long tradition in American politics, insisted that their political position represented the people’s view of the Constitution—as against that of a corrupt judiciary. Roosevelt would eventually pledge to institute judicial recall—making it possible for justices to be essentially impeached—insisting, “the people themselves must be the ultimate makers of their own Constitution.”34
From either political vantage, the heart of the struggle concerned the constitutionality of the provisions of a welfare state. Britain, which does not have a written constitution, established the foundations for what would become a comprehensive welfare state—complete with health insurance and old-age pensions—at the very time that the United States was failing to do the same. Wilson pointed out that the Constitution, written before mass industrialization, couldn’t be expected to have anticipated it, and couldn’t solve the problems industrialization had created, unless the Constitution were treated like a living thing that, like an organism, evolved. Critics further to the left argued that the courts had become an instrument of business interests. Unions, in fact, often failed to support labor reform legislation, partly because they expected it to be struck down by the courts as unconstitutional, and partly because they wanted unions to provide benefits to their members, which would be an argument for organizing. (If the government provided those social benefits, workers wouldn’t need unions, or so some union leaders feared.)35 Meanwhile, conservatives insisted that the courts were right to protect the interests of business and that either market forces would find a way to care for sick, injured, and old workers, or (for social Darwinists) the weakest, who were not meant to thrive, would wither and die.
For all of these reasons, American Progressives campaigning for universal health insurance enjoyed far less success than their counterparts in Britain. In 1912, one year after Parliament passed a National Insurance Act, the American Association for Labor Legislation formed a Committee on Social Insurance, the brainchild of Isaac M. Rubinow, a Russian-born doctor turned policymaker who would publish, in 1913, the landmark study Social Insurance. Rubinow had hoped that “sickness insurance” would eradicate poverty. By 1915, his committee had drafted a bill providing for universal medical coverage. “No other social movement in modern economic development is so pregnant with benefit to the public,” wrote the editor of the Journal of the American Medical Association. “At present the United States has the unenviable distinction of being the only great industrial nation without compulsory health insurance,” the Yale economist Irving Fisher pointed out in 1916.36 It would maintain that unenviable distinction for a century.
Congress debated Rubinow’s bill, which was also put forward in sixteen states. “Germany showed the way in 1883,” Fisher liked to say, pointing to the policy’s origins. “Her wonderful industrial progress since that time, her comparative freedom from poverty . . . and the physical preparedness of her soldiery, are presumably due, in considerable measure, to health insurance.” But after the United States declared war with Germany in 1917, critics described national health insurance as “made in Germany” and likely to result in the “Prussianization of America.” In California, the legislature passed a constitutional amendment providing for universal health insurance. But when it was put on the ballot for ratification, a federation of insurance companies took out an ad in the San Francisco Chronicle warning that it “would spell social ruin in the United States.” Every voter in the state received in the mail a pamphlet with a picture of the kaiser and the words “Born in Germany. Do you want it in California?” The measure was defeated. Opponents called universal health insurance “UnAmerican, Unsafe, Uneconomic, Unscientific, Unfair and Unscrupulous.”37
The fastest way through the constitutional thicket, it turned out, was to argue for welfare not for men but for women and children. By 1900, nearly one in five manufacturing jobs in the United States was held by a woman.38 Women and children couldn’t vote; in seeking labor reform and social insurance, they sought from the state not rights but protections. Mothers made claims on the state in the same terms as did veterans: a claim of services rendered. And even women who had not yet had children could be understood, for these purposes, as potential mothers. To that end, much of the early lobbying for protective legislation for women and children was done by the National Congress of Mothers, later known as the Parent Teacher Association, or the PTA. Founded in 1897 by Phoebe Apperson Hearst, the mother of the newspaper tycoon, and Alice McLellan Birney, the wife of a Washington, DC, lawyer, the National Congress of Mothers aimed to serve as a female auxiliary to the national legislature. “This is the one body that I put even ahead of the veterans of the Civil War,” Theodore Roosevelt declared in 1908, “because when all is said and done it is the mother, and the mother only, who is a better citizen even than the soldier who fights for his country.”39
Women were also consumers. In 1899, Florence Kelley, the daughter of an abolitionist who had helped found the Republican Party, became the first general secretary of the National Consumers League. Her motto: “Investigate, record, agitate.” Kelley, born in Philadelphia in 1856, had studied at Cornell and in Zurich, where she became a socialist; in 1885, she translated the work of Friedrich Engels. In the 1890s, while working at Jane Addams’s Hull House in Chicago, she’d earned a law degree at Northwestern. Eyeing the court’s decision in Lochner, and understanding that the courts treated women differently than men, Kelley wondered whether maximum-hour legislation might have a better chance of success in the courts if the test case were a law aimed specifically at female workers. Already, state courts had made rulings in that direction. In 1902, the Nebraska Supreme Court decreed that “the state must be accorded the right to guard and protect women as a class, against such a condition; and the law in question, to that extent, conserves the public health and welfare.”40
For women, who were not written into the Constitution, wining constitutional arguments has always required constitutional patching: cutting and pasting, scissors and a pot of glue. In an era in which the court plainly favored arguments that stopped short of actual equality—Plessy v. Ferguson, after all, had instituted the doctrine of “separate but equal” rather than provide equal protection to African Americans—Kelley tried arguing that women, physically weaker than men, deserved special protection.41
In 1906, the Oregon Supreme Court upheld a female ten-hour law that had been challenged by a laundryman named Curt Muller; Muller appealed to the U.S. Supreme Court. Kelley arranged for a lawyer named Louis Brandeis to argue the case for Oregon. Brandeis, known as “the people’s attorney,” was born in Kentucky in 1856, graduated from Harvard Law School in 1876, and married Alice Goldmark in 1891. Much of his legwork in the Muller case was done by the indefatigable reformer Josephine Goldmark, who worked for Kelley and was also Brandeis’s sister-in-law.42 Goldmark compiled the findings of hundreds of reports and studies by physicians, municipal health boards, public health departments, medical societies, factory inspectors, and bureaus of labor, demonstrating the harm done to women by working long hours. She presented Brandeis with a 113-page amicus brief that Brandeis submitted to the Supreme Court in 1908 in Muller v. Oregon. “The decision in this case will, in effect, determine the constitutionality of nearly all the statutes in force in the United States, limiting the hours of labor of adult women,” Brandeis explained, arguing that overwork “is more disastrous to the health of women than of men, and entails upon them more lasting injury.” The Oregon law was upheld.
Muller v. Oregon established the constitutionality of labor laws (for women), the legitimacy of sex discrimination in employment, and the place of social science research in the decisions of the courts. The “Brandeis brief,” as it came to be call
ed, essentially made muckraking admissible as evidence. Where the court in Plessy v. Ferguson had scorned any discussion of the facts of racial inequality, citing the prevailing force of tradition, Muller v. Oregon established the conditions that would allow for the presentation of social science evidence in the case that would overrule racial segregation, in Brown v. Board of Education of Topeka, in 1954.43
“History discloses the fact that woman has always been dependent upon man,” Brandeis argued in Muller v. Oregon. “Differentiated by these matters from the other sex, she is properly placed in a class by herself, and legislation designed for her protection may be sustained, even when like legislation is not necessary for men and could not be sustained.”44 Kelley used this difference as a wedge. Between 1911 and 1920, laws providing relief for women in the form of mothers’ and widows’ pensions passed in forty states; between 1909 and 1917, maximum-hour laws for women passed in thirty-nine states; and between 1912 and 1923, minimum-wage laws for women passed in fifteen states.45
But Kelley and female protectionists had made a Faustian bargain. These laws rested on the idea that women were dependent, not only on men, but on the state. If women were ever to achieve equal rights, this sizable body of legislation designed to protect women would stand in their way.
MULLER V. OREGON set the brilliant Louis Brandeis in a new direction. He became interested in the new field of “efficiency” as a means of addressing the problems of relations between labor and business. Brandeis became convinced that “efficiency is the hope of democracy.”46
The efficiency movement began when Bethlehem Steel Works, in Pennsylvania, hired a mechanical engineer from Philadelphia named Frederick Winslow Taylor to speed production, which Taylor proposed to do with a system he called “task management” or, later, “The Gospel of Efficiency.” As Taylor explained in 1911 in his best-selling book, The Principles of Scientific Management, he timed the Bethlehem steelworkers with a stopwatch, identified the fastest worker, a “first-class man,” from among “ten powerful Hungarians,” and calculated the fastest rate at which a unit of work could be done. Thenceforth all workers were required to work at that rate or lose their jobs.47 Taylor, though, had made up most of his figures. After charging Bethlehem Steel two and a half times what he could possibly have saved the company in labor costs, he, too, was fired.48 Nevertheless, Taylorism endured.
Efficiency promised to speed production, lower the cost of goods, and improve the lives of workers, goals it often achieved. It was also a way to minimize strikes and to manage labor—particularly immigrant labor.
Before 1896, European immigrants to the United States had chiefly come from northern and western Europe, and especially from Germany and Ireland. After 1896, most came from the south and the east, and especially from Italy and Hungary. Slavs, Jews, and Italians, lumped together as the “new immigrants,” also came in far greater numbers than Europeans had ever come before, sometimes more than a million a year. The number of Europeans who arrived in the twelve years between 1902 and 1914 alone totaled more than the number of Europeans who arrived in the four decades between 1820 and 1860.49
No one implemented the regime of efficiency better than Henry Ford. In 1903, Ford, the forty-year-old son of Michigan farmers, opened a motor car company in Detroit, where workers, timed by a clock, put together parts on an assembly line. By 1914, Ford’s plant was manufacturing nearly a quarter of a million cars every year, cars that cost one-quarter of what he’d sold them for a decade earlier.50 Before the automobile, only businesses owned large machines. As Walter Chrysler explained, “We were making the first machine of considerable size in the history of the world for which every human being was a potential customer.”51 If the railroad served as the symbol of progress in the nineteenth century, the automobile served as its symbol in the twentieth, a consumer commodity that celebrated individualism and choice. Announced Ford: “Machinery is the new Messiah.”52
Efficiency reached into family life with the founding of “home economics.”53 Ford exerted particular control over the home lives of his largely immigrant workers, by way of a Sociological Department. “Employees should use plenty of soap and water in the home, and upon their children, bathing frequently,” one pamphlet recommended. “Nothing makes for right living and health so much as cleanliness. Notice that the most advanced people are the cleanest.” Ford also founded an English School, to Americanize his immigrant workers, using the same methods of assembly that he used in his plant. “There is a course in industry and efficiency, a course in thrift and economy, a course in domestic relations, one in community relations, and one in industrial relations,” Ford’s English School announced. “This is the human product we seek to turn out, and as we adapt the machinery in the shop to turning out the kind of automobile we have in mind, so we have constructed our educational system with a view to producing the human product we have in mind.”54
Brandeis came to believe that Taylorism could solve the problems of mass industrialism and mass democracy. While preparing to appear before the Interstate Commerce Committee on railroad freight rates, Brandeis called a meeting of efficiency experts.55 In the Commerce Committee hearings, he argued that, instead of raising their freight rates, railroads ought to do their work more efficiently. With scientific management, Brandeis said, railroad companies could save one million dollars a day. He won the argument, but the people who worked on railroads and in factories soon began attempting to convince him that those savings came at their expense. The next year, when Brandeis gave a speech about efficiency to a labor union, one woman shouted at him, “You can call it scientific management if you want to, but I call it scientific driving.”56
Some members of Congress suspected the same. In 1912, William B. Wilson, who’d gone down into the coal pits at the age of nine and joined the union at eleven, chaired a House Special Committee to Investigate the Taylor and Other Systems of Shop Management. When Taylor, called to testify, talked about “first-class men,” Wilson inquired about workers who weren’t first-class, men whom Taylor had described as dumb as dray horses. “Scientific management has no place for such men?” Wilson asked. “Scientific management has no place for a bird that can sing and won’t sing,” answered Taylor. “We are not . . . dealing with horses nor singing birds,” Wilson told Taylor. “We are dealing with men who are a part of society and for whose benefit society is organized.57
Were men animals? Were men machines? Was machinery a messiah, and efficiency a gospel? With businesses driving workers to toil at breakneck speed, a growing number of Americans were drawn to socialism, especially since neither of the two major parties had any good answer to William B. Wilson’s anguished exchange with Frederick Winslow Taylor. One union man in Schenectady said, “People got mighty sick of voting for Republicans and Democrats when it was a ‘heads I win, tails you lose’ proposition.” In the presidential election of 1908, more than 400,000 people voted for the Socialist Party candidate, Eugene Debs. In 1911, Socialists were elected as the mayors of eighteen cities and towns and more than a thousand Socialists held offices in thirty states.58
Photographer Jesse Tarbox Beals took this shot of a suffrage parade in New York in 1910. Heads or tails was how the Democrats and Republicans looked to a lot of people in 1912, too, when Debs ran again, Woodrow Wilson won the Democratic nomination, and Theodore Roosevelt hoped to win the Republican one. Wilson believed that it was the obligation of the federal government to regulate the economy to protect ordinary Americans “from the consequences of great industrial and social processes which they cannot alter, control, or singly cope with.” This scarcely distinguished him from Roosevelt. “The object of government is the welfare of the people,” Roosevelt said. As Roosevelt put it, “Wilson is merely a less virile me.”59
The election of 1912 amounted to a referendum on Progressivism, much influenced by the political agitation of women. “With a suddenness and force that have left observers gasping women have injected themselves into the national campaig
n this year in a manner never before dreamed of in American politics,” the New York Herald reported, though only reporters who hadn’t been paying attention saw anything sudden about it.60
Having fought for their rights formally since 1848, women had achieved the right to vote in eight states: Colorado (1893), Idaho (1896), Utah (1896), Washington (1910), California (1911), Arizona (1912), Kansas (1912) and Oregon (1912). They’d also begun fighting for a great deal more than suffrage. The word “feminism” entered English in the 1910s, as a generation of independent women, many of them college-educated—New Women, they were called—fought for equal education, equal opportunity, equal citizenship, and equal rights, and, not least, for birth control, a term coined by a nurse named Margaret Sanger when she launched the first feminist newspaper, The Woman Rebel, in 1914. In 1912 and again in 1916, suffragists marched on the streets of cities across the country, organized on the campuses of women’s colleges, and staged hunger strikes. They waged old-style political campaigns, with buttons and banners. They flew in balloons. They decorated elephants and donkeys. Women who’d gone to prison for picketing took a train across the country in a Prison Special, wearing their prison uniforms. They dressed as statues; they wore red, white, and blue; they marched in chains. They waged a moral crusade, in the style of abolitionists, but on the streets, in the style of Jacksonian Democrats.61