A Woman’s Wage

What could possibly be more contemptible than the question; “What is the least sum on which an honest girl can keep body and soul together and escape disgrace?”

—Florence Kelley¹

Supreme Court decisions are frequently unpopular. Yet few have faced the storm of national derision that confronted the April 1923 opinion handed down in Adkins v. Children’s Hospital. By a vote of 5 to 3 (Brandeis abstaining), the Court negated the constitutionality of a Washington, D.C., law that provided minimum wages for women and minors. With its act the Court also placed in jeopardy the minimum wage legislation of thirteen other states.²

Newspaper editorials, public meetings, and placards denounced the decision. Mary Anderson, head of the Women’s Bureau, called it “nothing short of a calamity.”³ Samuel Gompers declared it to be a “logical next step in perfecting the doctrine that those who cannot help themselves shall not be helped.”⁴ The New York World ran a cartoon that depicted Justice Sutherland handing the document to a woman wage earner, with the caption, “This decision, madam, affirms your constitutional right to starve.”⁵ In the immediate aftermath of the decision, the National Women’s Trade Union League called a conference to stave off what it feared would be “a wholesale reduction of wages for more than 1,500,000 women and girls.”⁶ The “greatest wrong” in the decision, as Gompers and others pointed out, was that in describing labor as a commodity to be bought and sold Justice Sutherland had likened “the labor of a woman to the purchase of a shinbone over the counter to make soup.”⁷ Henry Seager, respected professor of economics at Columbia University, fulminated that the decision “represents a menace to the stability of our established institutions vastly more serious than that of socialists, communists, bolshevists, or any other group of ‘labor agitators.’”⁸ Many opponents of the decision decried the Court’s power to declare laws unconstitutional or urged that it be severely restricted. Henceforth, they suggested, six or seven rather than a bare majority of five justices should be required to repudiate any state law.⁹

The response might have been louder because the decision was apparently so unexpected. Fifteen years earlier, in Muller v. Oregon, the Court had accepted the principle that women’s health was a proper subject of state concern and therefore of state regulation.¹⁰ In the wake of that decision, most industrial states had taken it upon themselves to regulate the hours and working conditions of women and minors. These laws, quintessentially progressive in that they attempted to redress the imbalances of rapid industrial growth, had withstood many legal challenges and, just a year after Adkins, were to survive another. Though states were more cautious when it came to regulating wages, thirteen states and the District of Columbia had enacted minimum wage laws before 1923. Each was grounded in the assumption that the needs of working women for food, clothing, and shelter could be accurately determined and in the desire to maintain women’s health and protect their morals by establishing wages at a level “adequate to supply the necessary cost of living.”¹¹

Minimum wage laws varied. Some set wage levels. Others established regulatory commissions to determine appropriate wages. Some provided legal penalties for violators. Others relied on public exposure to inhibit transgression. They had weathered many challenges in state courts. And, in 1917, the U.S. Supreme Court, in an equally divided vote, affirmed an Oregon Supreme Court decision to uphold its minimum wage law.¹² These successful defenses of minimum wage laws led one commentator to note in 1921 that “no successful attack can be anticipated upon the principle of these laws in view of the absolute uniformity with which they have been maintained in the different states when pressed to a decision in the court of last resort.”¹³ Moreover, they were popular. Even after Adkins, states like Massachusetts and Washington continued to enforce their statutes, hoping to evade legal challenges; others, like New York, passed new laws.¹⁴ Why then had the Court so unexpectedly countered what seemed like a well-established trend?

The answer may lie in the competing paradigms embedded in the issue of minimum wages for women. Decisions about minimum wages were grounded both in legal precedents around labor and in those around women. Watching the judiciary confront these issues tells us something about the vital importance of the idea of gender differences in the Progressive Era. And looking at the evolution of the relationship between a doctrine grounded in changing theories of labor and one that rested on separate spheres may tell us something about the relationship of gender differences to other influential ideas in the construction of law and social policy. As we examine the roots of Adkins, we begin to understand something of how the gendered content of ideas governed an important set of political and judicial decisions and, not inadvertently, laid the groundwork for incorporating nineteenth century notions of workers’ dignity and independence into the judicial system.

Minimum wage legislation derived its rationale from the gendered arguments used to gain passage of other regulatory legislation.¹⁵ Its purpose, as the title of the Oregon Act makes clear, was “to protect the lives and health and morals of women and minor workers,” or, as the District of Columbia Act put it, “to protect women and minors from conditions detrimental to their health and morals, resulting from wages which are inadequate to maintain decent standards of living.”¹⁶ As such, it was firmly rooted in progressive notions of women’s separate sphere. Wage-earning women, in the familiar words of Muller v. Oregon, deserved protection because the “two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long-continued labor . . . in the capacity to maintain the struggle for subsistence.”¹⁷ The widely accepted notion that women were mothers of the race provided more than adequate justification for the courts to regulate women’s working lives. But although the courts in earlier decisions had accepted sex difference as a reasonable basis for restraining the freedom of women and employers to contract, and would subsequently continue to rely on sex difference, the Supreme Court rejected the idea in Adkins.

In so doing, the Court simply affirmed what had been well established by 1923, namely that an individual’s freedom to contract was not subject to restraint by the state, unless the public welfare was affected. The decision was rooted in nineteenth century arguments over free labor. As Justice Sutherland noted, freedom of contract while not absolute was “the general rule, and restraint the exception.”¹⁸ But the idea of free labor was not gender neutral. And therein lay the difficulty. For the Court, in this decision, insisted that women were individuals within the meaning of the law and thus overturned two decades of precedent that held that the requirements of gender difference superseded the right to freely contract their services. How had the two, so carefully reconciled for a generation, come into conflict?

We need to step back for a moment. Two alternative conceptions of “free labor” contested in the 1870s. The first, deriving from the early republic, had taken root in the period before the Civil War and, by the postwar period, was championed by such working class advocates as the Knights of Labor. In this view, labor was free when it had the capacity to participate independently in civic life. But that capacity inhered in the dignity and independence of the working person and therefore assumed that each person had equal rights or access to economic self-sufficiency. This doctrine of equal rights embodied at least a theoretical social equality that, workers and their representatives held, could not be sustained if workers were reduced to permanent wage-earning status. Implicit in this view was the notion that only economic independence could guarantee effective self-representation and the perpetuation of a democratic republic. The idea of free labor as it evolved in the nineteenth century thus assumed that, in order to participate effectively in the polity, workers required at least the possibility of escape from wage labor into self-directed employment.¹⁹

From this conception of free labor, women as individuals were virtually excluded. They were not expected to be members of the polity in the same sense as men, nor was their wage work expected to offer access to independent judgment. In the eyes of male workers women’s wage labor, while dignified and offering access to self-support, ought not to lead either to independence or to self-sufficiency. Rather, just as men’s free labor was predicated on their capacity to support a family, so women’s was assumed to sustain the family labor of men. As family members, women participated in the polity through their menfolk. Their wage work was encouraged only in occupational fields and at moments in the life cycle that did not violate customary conceptions of free labor. For women’s wage work to threaten the male’s capacity to be free was a problem just as it was a problem if women’s wage work undermined the capacity of either men or women to be effective family members. The American labor movement has engaged in debates on this issue since at least the 1830s, when male trade unionists protested the employment of female labor. The result of hiring women, skilled workers then thought, would be to impoverish “whole families and benefit none but the employers.” They urged women to adopt strategies that would qualify them for “the more sober duties of wives, mothers and matrons.”²⁰ The idea of free labor reified the idea of separate spheres, discouraging women from participating in wage work except in ways that would help to maintain family lives.

But labor had rules that did not necessarily derive from families. In the late nineteenth century, a dramatic acceleration in the process of industrialization threatened possibilities for self-directed employment for men as well as for women. While the defenders of free labor confronted the challenges of a debilitating and all-encompassing wage system with such innovations as cooperative producer associations and political action, a new generation of industrialists and entrepreneurs battled them at every turn.²¹ Eager for a rapid transformation of control into their own hands and anxious to maximize the possibilities of cheap labor, entrepreneurs treated workers as individuals, each capable of negotiating and each protected by the Fourteenth Amendment’s prohibitions on deprivation of property. Labor’s freedom, they suggested, with the concurrence of the courts, inhered only in its right to freely contract to sell itself.

This view, commonly known as freedom of contract, challenged labor’s notions of putative social equality and threatened the economic independence from which it derived. Within its perspective, equal rights were embedded in the capacity of each individual to compete freely. Workers (male and female) were free only to enter into contracts to sell their labor without restraint. In this position entrepreneurs were joined by the courts. As a matter of formal and legal principle, the courts, beginning in the 1880s, ignored the vulnerable position of workers and turned the Fourteenth Amendment’s prohibition on depriving citizens of life, liberty, and property on its head. Consistently, they interpreted freedom of contract as a ban on state efforts to restrict the rights of employers to offer even the most debilitating working conditions. The courts thus effectively snuffed the political vision of free labor. Valiant battles of workers’ organizations could not prevent this development. With a few specific exceptions, the doctrine outlawed protective legislation for most workers, depriving them of state intervention while employers were left free to impose their own conditions of work.²² The crack in this system was gender.

The effort to limit labor’s expectations by means of freedom of contract expressed the stake of a rapidly industrializing society in cheap and available labor. While theoretically, the tendency of such a system was to pull women into the labor force as individuals, there remained some questions as to whether they were “protected” by the Fourteenth Amendment as men were. For the same assault on free labor that had undermined notions of work as the locus of dignity relied upon, and perpetuated, the idea of the family as an economic unit and as the source of values by which a new generation of laborers would be raised. If, on the one hand, this provided a large pool of “cheap labor,” on the other, even the most hard-boiled advocates of freedom of contract could not be insensitive to the problem that women who were treated as individuals for the purpose of the workplace still needed to fulfill demanding roles as family members. Jobs that undermined the working class family by destroying women’s health or fertility, or by encouraging women to compete for male jobs, could easily destroy the golden egg that produced cheap labor.

Advocates of freedom of contract differed from the champions of free labor on virtually every score. Yet both agreed to some sense of separate spheres. The content of women’s roles differed for each. Labor’s conception was rooted in the belief that effective civic participation demanded workplace dignity that in turn rested on an ordered and comfortable family life. Business’s conception derived from the desire to preserve the family as an economic unit that could provide incentives to stable and loyal work force participation. Either way, ideas of gender difference defined women as family members whose work roles were secondary. Ideally, at least, this led to no contradiction for male workers: women, seen either as individuals who competed with them for jobs or as family members on whose household labor they relied, belonged at home. But for employers, placing women in separate spheres meant that they needed to treat women simultaneously as individuals with a sacrosanct freedom of contract and as family members in whom they and the state had a special interest. It was this contradiction that the courts were called upon to resolve in the minimum wage cases.

By 1908 they had successfully done so with regard to hours. Under pressure from coalitions of women workers, reformers, and trade unions, legislatures and courts had legitimized the now familiar device of making women “wards of the state.” But what worked for hours had special consequences when applied to wages. Regulating hours, as the Court noted in Adkins, had “no necessary effect on the heart of the contract, that is, the amount of wages to be paid and received.”²³ The minimum wage, in contrast, touched its core. It was designed to defend freedom of contract by ensuring that women who could not otherwise survive did not undermine an ideology that relied on the fiction of a worker’s liberty to negotiate fair terms for labor. At the same time the minimum wage threatened the idea of freedom of contract by clearly identifying some workers as lacking the appropriate liberty. Tracing the resolution of this dilemma will tell us something of how ideas of gender difference help to construct social reality. For in one of the wonderful ironies of history, judicial decisions and the legal system contributed to definitions of female difference that in the end threatened the idea of the free labor market they were meant to protect.

The progressive attempt to accommodate gender invigorated a free labor debate that had been all but lost. Arguably, it helped to alter the terms of the debate. In creating sex as a category outside the common expectation of labor and law, the courts opened the door to an evaluation of the proper relation of the state to labor as a whole.²⁴ The language with which this struggle was enacted tells us something about the centrality of separate spheres in the lives of men and women and also about its competing functions. It enables us to watch how the notion of separate spheres first confronted and eventually helped to break down the pernicious idea of freedom of contract.

Let us begin with the case of Quong Wing, the Chinese laundry man who, in the winter of 1911–1912, petitioned the United States Supreme Court for relief. Quong Wing, a male, had sued the treasurer of Lewis and Clark County, Montana, to return the $10 he had paid for a license to take in hand laundry. The Montana law, as cited by Justice Oliver Wendell Holmes in the Supreme Court decision, “imposed the payment upon all persons engaged in the laundry business, other than the steam laundry business, with a proviso that it should not apply to women so employed where not more than two women were employed.”²⁵ Because the law applied to all laundries except steam laundries, it taxed small enterprises while exempting large ones, and because it applied to all persons who worked in hand laundries except women who worked alone or in pairs, it in effect taxed men who did what was considered women’s work. There can be little doubt that the state meant to tax Chinese men, while exempting women and large operators; for, as Justice Holmes observed in his opinion for the Court, “hand laundry work is a widespread occupation of Chinamen in this country while on the other hand it is so rare to see men of our race engaged in it that many of us would be unable to say that they had ever observed a case.”²⁶ Yet Quong Wing did not charge racial discrimination—an issue on which Holmes thought he might well have won. Instead, he charged sexual discrimination—and lost. The Supreme Court upheld the Montana statute because, as Holmes put it,

If the state sees fit to encourage steam laundries and discourage hand laundries that is its own affair. And if again it finds a ground of distinction in sex, that is not without precedent. . . . If Montana deems it advisable to put a lighter burden upon women than upon men with regard to an employment that our people commonly regard as more appropriate for the former, the Fourteenth Amendment does not interfere by creating a fictitious equality where there is a real difference. The particular points at which that difference shall be emphasized by leg islation are largely in the power of the state.²⁷

This case is not the first to identify gender difference as a legal category.²⁸ But, unlike the rationales for restricting women’s working hours, on which the Court drew and which were rooted in the presumed physical disadvantages of women and the social benefits of legislation, the Court here asserted an arbitrary power to discriminate between men and women—not a new phenomenon but one that it did not even seek to justify except as a matter of legislative choice. Quong Wing thus extended Muller’s standard of sex as an appropriate classification to assert a state’s right to define which sex differences could be taken into account. In imposing a new standard for legislative review, the case raises many issues, among them how readily gender “difference” is deployed under circumstances that would have explicitly precluded ethnic “difference,” and the content of the “distinction” or “difference” to which the Court so blithely refers and that it makes no attempt to define. But for our purposes the most interesting question is the way in which the decision illuminates the social meaning of men’s and women’s wages.

The decision in Quong Wing suggests that the “common regard” (or popular perceptions of women’s roles) is determinative in legislative choice as to which differences shall be emphasized. But surely that is a problem. If we take seriously Justice Holmes’s comment that “the particular points at which that difference shall be emphasized by legislation are largely in the power of the state,” then we have little choice but to view gender difference as an idea with a political content that moves people to behave in certain kinds of ways—in short, as an ideological construct. The decision tells us quite clearly that male and female job choices, and the earnings that result, are subject to regulation to bring them into line with the “common regard.” A look at the evidence suggests the ideological level at which gender entered the debate.

In 1912 the common regard held that women belonged in families. Employers freely (and largely falsely) expressed the belief that women did not need the incomes of males because they could rely on families to support them. More subtly, in the common regard, questions of masculinity entered into every decision on wages. For men the wage encompassed family support; for women it tended to incorporate only the self-support of a single person. This was made clear by New York State’s Factory Investigating Commission of 1912. Eager to establish a case for the minimum wage, it asked several thousand employers to estimate what wage would be “required to support in health and working efficiency” the following categories of workers:

A young woman of 16–18 years, living independently

A young man of 16 to 18 years, living independently

An adult woman living independently

An adult man living independently

A normal family containing one man at work, one woman doing her own housework, and three children under 14 at school.²⁹

No question about women supporting others was ever asked. Rather, the opposite assumption was made, namely that it was appropriate for women to derive part of their support from families. This assumption found its way into Adkins where Justice Sutherland objected to the District of Columbia law because it failed to take account of “the cooperative economies of the family group, though they constitute an important consideration in estimating the cost of living, for it is obvious that the individual expense will be less in the case of a member of a family than in the case of one living alone.”³⁰

The wage might thus appropriately order the relations between the sexes. As a relative, not an absolute phenomenon, the wage can be read in terms of how women stretched their earnings and in terms of such larger meanings as independence or power in the family. And it can tell us something about social conceptions of womanhood and their relationship to gendered structures that extend far beyond the wage itself. How the wage “images” women—like the role it plays in fixing relationships between men and women—tells us something about how structures of difference are maintained and used. For if the common regard legitimized a lower wage for women and negated women’s articulated experience about what it cost to live and help support a family, it also set the stage for the struggle over whether a minimum wage was socially desirable and economically legitimate.

Because the battle was hard fought, the price of maintaining separate spheres was high. It took the form of a vicious and clearly ideological attack on women as workers that exaggerated their “natural” attachment to the home and belittled their ability to earn wages. The popular imagination conjured up pictures of wage-earning women who were helpless, dependent, weak, handicapped, ignorant, delicate, and exploitable. Portraits of wage-earning women depicted them as greedy and lazy as well. They had, it was said, a “natural longing for recreation . . . adornment” and luxury. At the same time, women lived in a world where unscrupulous employers did not hesitate to subject them to conditions “akin to slavery” and thus leave them vulnerable to peculiar dangers that threatened to lure them into vice and immorality. These conditions prevented women from living in “decency” or from enjoying “healthy and normal lives,” and they inhibited the peace of a “satisfied mind” and a “wholesome existence.” Worse, they threatened the “health and well-being” of future mothers and therefore held “the strength of the nation hostage.”³¹ While these images expand upon those evoked to justify shorter hours for women but not for men, their consequences were not at all alike.

In the debate over the minimum wage, both sides had a stake in maintaining wage differentials, and so both resorted to this imagery. The terms of the debate thus contributed to depicting women in the extreme language of childhood and vulnerability. For example, both sides saw women as inefficient workers who lacked training. Proponents of the minimum wage argued that wage earners could be divided between those who “are earning what they receive or more” and those “whose services are worth little or nothing.”³² Even sympathetic reformers like Florence Kelley held that too many untrained and unskilled women flooding the job market depressed women’s wages. To raise wages required educating and training women to be more efficient and effective workers. That this had not happened as a natural result of the market was due to defects in women’s character.

Women competed with each other. Like the notion that women workers were inefficient, the idea that female competition reduced wages pervaded the imagery. One side depicted women as “undutiful daughters” who, tempted by luxurious living, allowed their mothers to overwork themselves while they sought riches in the factory or department store. Or it imagined dissatisfied wives not content to live on their husbands’ earnings. Though sympathetic to the minimum wage, the other constructed a picture of “women whose earnings are supplemented from other sources” and who are therefore a “constant drag on the wage level and offer formidable competition to the growing thousands of women dependent on their own labor for support.”³³ The circular logic of this argument appears when we place it in the form of a syllogism: Women do not earn enough, therefore they live with others, therefore they reduce the level of wages for all women, therefore women do not earn enough.

Another explanation was that women chose the wrong jobs. For example, opponents of the minimum wage suggested that women could easily save money and achieve mobility if they were willing to become domestic servants. Such jobs were widely available. But women, objecting to their endless hours, close supervision, and live-in conditions, frequently refused them. In view of their willingness to turn down these jobs, a minimum wage would only reinforce women’s worst qualities, rewarding the inefficient without benefiting those who were oriented toward hard work and mobility. On the other side of this coin, a picture of women’s inability to advance themselves could yield an argument for state aid as illustrated by the belief that they were in occupations not reachable in the normal course of trade union organization. “A great deal can be said for minimum wage laws and laws limiting the hours of labor for women,” asserted feminist Crystal Eastman, who normally opposed special laws for women only, “on the ground that women’s labor is the least adapted to organization and therefore the most easily exploited and most in need of legislative protection.”³⁴ Women who selected jobs that restricted their ability to bargain collectively and were, therefore, incapable of securing a fair return on their wages constituted, according to some labor leaders, “a helpless class of labor, broken in spirit.” “Practically impossible to organize under existing conditions,” they might be more readily organized once their “broken spirit had been reinforced by a minimum wage.”³⁵

Women had weak characters. Opponents of a minimum wage suggested that legislation would increase immorality because it would give extra money to frivolous, unworthy people. Those who favored the minimum argued that weak women would succumb to vice and prostitution at the least temptation and needed higher wages to enable them to resist.³⁶ Neither argument seemed to have much to do with reality. Of the fifteen experts who answered the FIC’s question as to whether women’s low wages yielded prostitution, twelve attributed prostitution to low family incomes, not the low wages of the woman worker. Still, New York’s Factory Investigating Commission concluded that one of the dangers of low wages for women was vice and immorality. And a persistent demand of its nonexpert witnesses was for “a wage that a woman could live on, and live right.”³⁷

Public debates over the minimum wage, arguments for and against the minimum in a series of court cases, and the judicial decisions made in such cases built on these portraits. Both sides drew vivid pictures of women’s helplessness in relation to work and wages in order to make a case for their positions. Those opposed to the minimum wage, and who might have relied on more complex descriptions of women’s lives, chose instead to defend the wage system. Regulating the wage, in their view, would restrict the market, ignore supply and demand, reduce profits, and drive employers out of business. In the legal imagination, at least, free enterprise vied with family roles as the salvation of America. To save women might require a regulated wage; to save America required freedom of contract. The women’s wage became an arena for playing out struggles that ranged far beyond domesticity.

Arguments against the minimum wage were predicated heavily on the assumption that employers paid a natural wage that was the equivalent of the service rendered—that women were worth no more than what they earned. The neoclassical economic theory on which such arguments rested held the worker responsible for his or her place in the job market. In a free market, workers who could freely sell their labor earned the economic value of what they produced. Employers hired workers at different levels of wages calculated to reflect the value of the product created as well as the supply of workers willing to accept the wages offered. If women tended to work on low-value products (garments, paper flowers, boxes, textiles, shoes, for example), that was not the employer’s fault but a result of women’s choices. Business could not pay more than a “natural” wage without threatening the profits that enabled it to survive. If women’s wages tended to be low, the logical explanation lay in a persistent assertion of a woman’s “difference.” A regulated minimum that forced employers to “supply individual needs . . . in excess of what the employee earns or is worth”³⁸ would be disastrous. From this flowed a series of questions: Should the wage be determined not by the value of the services rendered but by the cost of supporting women? Should industry be required to cover the deficit in women’s wages? Was there a constitutional question implicit in the issue of “whether an employer may be compelled to pay the cost of maintaining the employee whose full services he voluntarily uses in the conduct of an enterprise?”³⁹ Since no employer would stay in business without profits, would attempts to regulate wages (as a function of the cost of supporting women as opposed to the value of the services they rendered) not drive employers out?

Circumventing the idea of freedom of contract by exacerbating women’s weakness and helplessness transformed the debate. Freedom of contract rested on the notion that the wage was an abstraction— the product of agreement between employer and employee. The argument over the minimum wage, because it was gendered, exposed the social issue embodied in the wage and thus kept alive a social meaning on which defenders of free labor had insisted. The Progressives connected the wage argument to hours by suggesting that if women’s wages were so low as to undermine their childbearing and rearing capacities then the state as a whole would suffer because its future citizens would be weak and without good discipline and values. Under those circumstances freedom of contract would threaten the “future of the race.” For the courts to accept this argument required suspending wage theory and arguing for redistribution of income according to norms of social justice that recalled the ideals of advocates of free labor.

In focusing so heavily on separate spheres, protagonists and antagonists alike begged the question of social justice in the industrial sector, evoking fears that the extreme solutions required to compensate for women’s weakness might threaten the free market. Thus, the argument over wages placed the judiciary squarely in the position of deciding whether to concede separate spheres to women in order to redistribute income sufficiently for women to maintain families (granting some credence to the older free labor ideology and enabling women to keep open possibilities for gendered action) or whether to sustain freedom of contract in the face of the apparent threat to families.⁴⁰ The conundrum that this posed is revealed in the language and arguments used during the course of the debate.

First, it raised the issue of the appropriate relationship between male and female wages. If the natural wage was a male wage and women’s wages were low because they “could not earn a wage,” then attempts to create an arbitrary minimum for women and not for men would threaten the balance between male and female spheres. The alternative would be to raise male wages. But this begged the issue of whether a state that could impose a minimum wage could not also impose a maximum. Some who agreed that the public welfare was menaced by low wages for women had to agree that it was equally vulnerable to low male wages. For if higher wages were necessary to health and morality—if a law fixing wages was a health law—surely then it was desirable for both men and women. If benefits claimed for women were given to men after all, then whole families would benefit. As one commentator put it, “If . . . a minimum wage law for women is constitutional because it tends to provide the race with healthy moral mothers, so would a minimum wage law for men, because it would tend to provide the race with strong honest fathers.”⁴¹ Once opened, that Pandora’s box could only produce a case for a higher wage for all.

Closely related to the issue of health was that of morality. One of the basic arguments for minimum wages was that women with insufficient incomes were regularly tempted into amorous relationships or even into prostitution in order to make ends meet. Raising this issue involved not only questions of male morality but those of women’s character as well. As Justice Sutherland put it, “It cannot be shown that well paid women safeguard their morals more carefully than those who are poorly paid.” Then he added, “If women require a minimum wage to preserve their morals, men require it to preserve their honesty.”⁴² The same kind of logic served the purposes of an Arkansas judge who dissented from his colleagues in believing the minimum wage to be unconstitutional. The wage, he argued, was not an issue of health and morality at all:

Wealth, at least to the extent that it affords ease and comfort, is the goal of all mankind, regardless of sex, and failure of its attainment often brings discontent and unhappiness, but I am unwilling to say that woman’s health or virtue is dependent upon financial circumstances so as to justify the State in attempting to regulate her wages. Her virtue is without price in gold. She may become the victim of her misplaced affections and yield her virtue, but sell it for money—no. When she falls so low as that it is only from the isolated helplessness of her shame and degradation.⁴³

If women could not earn their keep, then society, not women, would pay the cost of women’s low wages. Again, women who worked were depicted as mere parasites who imposed a financial burden on the state and on other industries. Women’s low wages, in this view, were nothing less than a “menace to public welfare.” As Felix Frankfurter put it in the famous case of Stettler v. O’Hara, “Industries supporting male workers were being drawn upon to assist in supporting women workers engaged in other industries, which were refusing to carry their cost.” Frankfurter, defending Oregon’s minimum wage law, argued that the immediate effects of women’s low wages were to impose financial burdens on the state, “which threatened excessive and unremunerative taxation.” Women’s wages, he argued, were a “community problem—a problem affecting the state in its pervasive entirety.”⁴⁴

The degree to which arguments over women’s wages threatened freedom of contract emerges most forcefully in the suggestion that depictions of women’s difference that fueled a demand for the minimum wage would in the end raise false expectations as to the distribution of income and property. These expectations could not, according to some, be met under the limits of the constitution, for they required “A to give part of his property to B.”⁴⁵ Such an action would deny individual rights, destroy natural competition, and evoke the specter of social revolution. Minimum wage legislation, in the words of a June 1917 commentator, was “a new expression of the paternalistic and socialistic tendencies of the day. It savors of the division of property between those who have and those who have not, and the leveling of fortunes by division under governmental supervision. It is consistent with the orthodox socialist creed, but it is not consistent with the principles of our government which are based upon the protection of individual rights.”⁴⁶

Champions of the minimum wage did not deny that individual rights were endangered by regulation. Rather, they argued that individual rights could not be allowed to supersede the rights of “women who must labor in order to live. It would seem,” noted Justice Wendell Stafford, who had been part of the majority in the original D.C. Supreme Court decision that upheld the constitutionality of minimum wages, “that the right of this class to live on a barely decent level, and the right of the public to have them so live, should outweigh the right of those who do not need to work in order to live, and who therefore are merely asserting a right to earn money and thereby accumulate property.”⁴⁷

The idea that weak women were at some level responsible for undermining a cherished principle of government was echoed and expanded by court decisions at all levels beginning in 1917. It finally became a key argument for invalidating the minimum wage. From 1912 to 1923, the minimum wage was more or less sustained. But by 1917 tensions provoked by the emphasis on gender difference became apparent. Writing for the District of Columbia Supreme Court in the penultimate round of Adkins v. Children’s Hospital, Justice Van Orsdel declared that “legislation tending to fix the prices at which private property shall be sold, . . . places a limitation upon the distribution of wealth, and is aimed at the correction of the inequalities of fortune which are inevitable under our form of government, due to personal liberty and the private ownership of property. These principles are embodied in the Constitution itself.”⁴⁸

Imposing a minimum wage was thus the equivalent of using the police power to “level inequalities of fortune.” Van Orsdel made his own economic bias clear: “A wage based upon competitive ability is just, and leads to frugality and honest industry, and inspires an ambition to attain the highest possible efficiency, while the equal wage paralyzes ambition and promotes prodigality and indolence. It takes away the strongest incentive to human labor, thrift and efficiency, and works injustice to employee and employer alike, thus affecting injuriously the whole social and industrial fabric.”⁴⁹ “No greater calamity,” he continued,

could befall the wage-earners of this country than to have the legislative power to fix wages upheld. It would deprive them of the most sacred safeguard which the Constitution affords. Take from the citizen the right to freely contract and sell his labor for the highest wage which his individual skill and efficiency will command, and the laborer would be reduced to an automaton—a mere creature of the state. It is paternalism in the highest degree, . . . it is but a step to a legal requirement that the industrious, frugal, economical citizen must divide his earnings with his indolent, worthless neighbor. . . . It will logically, if persisted in, end in social disorder and revolution.⁵⁰

Under the circumstances, to defend women’s differences required what some perceived as an attack on first principles. Advocates of the minimum wage had couched their arguments in exaggerated assertions about the traditional roles of women. But to maintain those roles at the expense of freedom of contract would, in the view of a conservative judiciary, undermine the principle of individual rights and the economic system itself. To accommodate to the pressure would jeopardize the wages of men and of other women, the profits of industry, and the free enterprise system. Minimum wages, in short, would so alter the role of the state as to produce nothing less than the dreaded disease of sovietism.⁵¹

Faced with a sharp conflict between two ideological systems, one had to give way. If women were to continue as paid workers, the courts could either deny the importance of gender difference or negate freedom of contract. In the event, the Supreme Court chose to sustain freedom of contract by declaring the minimum wage “to be wholly beyond legislative discretion.”⁵² Divided 5 to 3 (with Brandeis abstaining because his daughter had been involved in preparing the brief), the Court declared that gender differences had come to the vanishing point, that there was no reason therefore to abrogate freedom of contract, and that the minimum wage was unconstitutional.

To some observers it appeared that the Court had done an “anomalous somersault.” But in fact, a closer view reveals the decision to have been a logical consequence of the contradictions produced by the way in which women’s differences had been incorporated into the social meaning of the wage. Speaking for the majority, Justice Sutherland evoked the underlying issues as he saw them: free enterprise was arrayed against motherhood. He concluded that free enterprise had to be preserved, even at the cost of wiping out the separate spheres. The wage, he asserted, was based on a “just equivalence of the service rendered,” not on the need of the worker. No matter how pressing, the need of the worker could not avail. “The ancient inequality of the sexes,” he declared in a much quoted paragraph,

has continued with diminishing intensity. In view of the great— not to say revolutionary—changes which have taken place . . . in the contractual, political, and civil status of women, culminating in the Nineteenth Amendment, it is not unreasonable to say that these differences have come almost, if not quite, to the vanishing point. . . . While the physical differences must be recognized in appropriate cases, and legislation fixing hours or conditions of work may properly take them into account, we cannot accept the doctrine that women of mature age, sui juris, require or may be subjected to restrictions upon their liberty of contract which could not lawfully be imposed in the case of men under similar circumstances.⁵³

Castigating those who did not pay attention to employers’ needs and acknowledging that a woman was worth little in the free labor market, he attacked the statute for failing to “require that the wage have any relation to the reasonable value of the workers’ services.”

Bold as the decision was, it might have been expected. It built upon what was implicit in Holmes’s opinion in Quong Wing. Holmes had there asserted that the existence of sexual difference (or separate spheres) was the legitimate province of the state to define. In his view sexual difference was a legitimate classification for legislators. By 1923, in a new political environment, the Supreme Court, stymied by the tension between attributions of gender difference and an economic system that assumed freedom of contract, chose to take the opposite position. It simply defined sexual difference out of existence.

But the issue was not so simply put to rest. The rhetoric of the debate and the reality of women’s lives conspired to keep it alive. In the dissents to Adkins and in the protest that ensued, a strong appeal to social justice, rooted in family and domestic life, persisted. Dissenting Chief Justice Taft, for example, thought the majority decision unwise because “it is not the function of this court to hold Congressional acts invalid simply because they are passed to carry out economic views which the Court believes to be unwise or unsound.”⁵⁴ To others it violated simple principles of social justice. “It demeans humanity,” said Samuel Gompers, that “women and girl wage earners are to be bought over the counter.”⁵⁵ Confusion reigned over the Court’s consistent affirmation of gender difference when it came to hours and working conditions and its equally consistent opposition to sex-based classifications when wages were at stake. Case after case came to the Supreme Court, only to be turned back.⁵⁶ But in 1937 the Court once again reestablished an interest in women’s difference as the opening wedge of a fight for social justice.

In West Coast Hotel Co. v. Parrish, the Court reversed itself. Chief Justice Hughes, speaking for the Court, rejected a freedom of contract defense against minimum wage legislation because, he said, “the Constitution does not speak of freedom of contract. It speaks of liberty. . . . But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people.”⁵⁷ Speaking in the language of nineteenth century advocates of free labor, he denied any “absolute” freedom of contract and argued that liberty did not imply “immunity from reasonable regulations and prohibitions imposed in the interest of the community.”⁵⁸ What were the interests of the community? They resided in protecting those parties that did not stand upon an equality and therefore in the state’s interest in women.

Calling upon Muller v. Oregon and repeating the words of Quong Wing, that only a “fictitious equality” existed between men and women, the Court argued, in overturning Adkins, that women “are relatively defenseless against the denial of a living wage.” Low wages were “detrimental to their health and well-being” and “cast a direct burden for their support upon the community.” Echoing Holmes’s insistence on the state’s right to determine where difference shall be emphasized, the Court castigated selfish employers for disregarding the public interest, noted the anguish of the economic depression, and asserted that the “relative need” of women “in the presence of the evil, no less than the evil itself, is a matter for legislative judgment.”⁵⁹

But the premonitions of Van Orsdel, Sutherland, and others had not been misplaced. For though Chief Justice Hughes used gender difference to highlight the state’s interest in “the exploitation of a class of workers who are in an unequal position with respect to bargaining power and are thus relatively defenseless against the denial of a living wage,” he explicitly utilized female difference as the entering wedge for judicial decisions about others in need.⁶⁰ In so doing, he ensured that a new definition of liberty would prevail. Less than three years later, the Court relied on its decision in West Coast Hotel to sustain the constitutionality of the Fair Labor Standards Act, which legislated minimum wages for men and women. But it abandoned sex difference as the crucial criterion for undermining freedom of contract. In United States v. Darby, the case that affirmed the FLSA and cleared the path for the social legislation of the modern period, the Court transcended gender and argued that “it is no longer open to question that the fixing of a minimum wage is within the legislative power.”⁶¹

How do we explain the shift? Part of the answer lies in the change in social conditions in the fourteen years between the two decisions. Sutherland, in dissent from the majority in West Coast Hotel, tried once again to make the case that there was no longer any reason why women “should be put in different classes in respect of their legal right to make contracts. Nor should they be denied, in effect, the right to compete with men for work paying lower wages which men may be willing to accept.”⁶² This argument carried little weight in the depression climate. But much of the shift in Court opinion lies in the way that language about women and agitation around them had demonstrated the evident social purposes of such legislation. By the 1930s, when public opinion was once again ready to consider the search for social justice as part of the legitimate end of government, the idea that women constituted a separate and deserving class could and did serve to illustrate the rigidity of old doctrines of freedom of contract. Attention to gender differences had kept alive the possibility that all workers deserved state protection. As Justice Stone put it in his dissent from the Court’s final attempt to preserve the sanctity of freedom of contract in Morehead v. New York, “In the years which have intervened since the Adkins case . . . we have had opportunity to perceive more clearly that a wage insufficient to support the worker does not visit its consequences upon him alone; that it may affect profoundly the entire economic structure of society and, in any case, that it casts on every taxpayer, and on government itself, the burden of solving the problems of poverty, subsistence, health and morals of large numbers in the community.”⁶³

Looking at the struggle over the minimum wage should convince us that, whatever the realities of gender differences, the idea of difference constitutes at least part of the cultural context within which debates over workplace aspirations and expectations are shaped. As difference remains embedded in the wage, so it is hidden in other arenas of social policy. But, in the Progressive Period, gendered ideas contested with other systems of thought to produce the compromises that yielded familiar legislation. If we think about legislation this way, we might learn something about how ideas are institutionalized into law and public policy. For as Justice Holmes put it in 1912, “the particular points at which [sex] difference shall be emphasized by legislation are largely in the power of the state.” Whether we agree with them or not, the Progressives fully understood and utilized that idea.