Bound by Our Constitution

Bound by Our Constitution: Women, Workers, and the Minimum Wage

VIVIEN HART
https://www.jstor.org/stable/j.ctt7pg0q
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    Bound by Our Constitution
    Book Description:

    What difference does a written constitution make to public policy? How have women workers fared in a nation bound by constitutional principles, compared with those not covered by formal, written guarantees of fair procedure or equitable outcome? To investigate these questions, Vivien Hart traces the evolution of minimum wage policies in the United States and Britain from their common origins in women's politics around 1900 to their divergent outcomes in our day. She argues, contrary to common wisdom, that the advantage has been with the American constitutional system rather than the British.

    Basing her analysis on primary research, Hart reconstructs legal strategies and policy decisions that revolved around the recognition of women as workers and the public definition of gender roles. Contrasting seismic shifts and expansion in American minimum wage policy with indifference and eventual abolition in Britain, she challenges preconceptions about the constraints of American constitutionalism versus British flexibility. Though constitutional requirements did block and frustrate women's attempts to gain fair wages, they also, as Hart demonstrates, created a terrain in the United States for principled debate about women, work, and the state--and a momentum for public policy--unparalleled in Britain. Hart's book should be of interest to policy, labor, women's, and legal historians, to political scientists, and to students of gender issues, law, and social policy.

    eISBN: 978-1-4008-2156-3
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. PREFACE
    (pp. ix-xii)
  4. ACKNOWLEDGMENTS
    (pp. xiii-2)
  5. ONE Constitutional Politics
    (pp. 3-13)

    The difference between British parliamentary sovereignty and American constitutional government has long intrigued commentators on both sides of the Atlantic. In the late nineteenth century, a distinguished Anglo-American group of scholars and friends produced a set of classic studies of the politics of these two nations, whose wisdom has in many respects become the convention. The effect of their respective national frameworks of institutions and powers on social policy was predicted by such experts as James Bryce, erstwhile British ambassador to Washington; Abbott Lawrence Lowell, anglophile and Harvard president; and A. V. Dicey, Oxford professor lecturing at Harvard. Their conclusions...

  6. TWO No Sweat: WORK AND WOMEN, BRITAIN, 1895–1905
    (pp. 14-38)

    Minimum wage policy in Britain became law in the Trade Boards Act of 1909. Officials of the Board of Trade, the national government department responsible, could apply the act to any industry, provided they were “satisfied that the rate of wages prevailing in any branch of the trade is exceptionally low, as compared with that in other employments, and that the other circumstances of the trade are such as to render the application of this Act to the trade expedient.”¹ These “other circumstances” were limited by a promise to Parliament, to “exceptional cases where two fundamental conditions are absent ....

  7. THREE Low-Paid Workers: THE TRADE BOARDS ACT, BRITAIN, 1906–1909
    (pp. 39-62)

    In 1906, the minimum wage ceased to be the parochial concern of a small circle of female, Liberal, and Labour reformers and became a national issue. The dramatic general election of January 1906 replaced a Conservative government with a Liberal one, gave the Liberals a huge majority (400 seats to the Conservatives’ 157), and brought a sizable block of thirty Labour M.P.’s into office. Minimum wagers had an unprecedented opportunity. They could hope to place their bill on the programs of both a new and sympathetic Liberal government and a new and sympathetic Labour party. But in February 1906, when...

  8. FOUR A Sex Problem: THE POLITICS OF DIFFERENCE, U.S.A., 1907–1921
    (pp. 63-86)

    In the United States as in Britain, at the turn of the century sweating was widespread and alarming. American reformers responded to similar perceptions of similarly dire conditions, importing the solution of minimum wage policy during 1907–8 from Britain. Portents of a transformation in American hands from negotiating machinery for low-paid workers to a living wage for women were visible in 1908, when James Mallon of NASL shared a platform in Geneva with Florence Kelley of the National Consumers’ League (NCL). Kelley became the leader of the American campaign and regularly sought advice from Mallon and NASL. At this...

  9. FIVE Police Power: THE WELFARE OF WOMEN, U.S.A., 1907–1921
    (pp. 87-107)

    Minimum wagers faced a dilemma. Women’s wages were widely understood, and widely regretted, as a necessary contribution to the family economy: “Many men are receiving low wages and the investigation shows that many men cannot properly support themselves nor support a family on what they receive.” But this male responsibility apparently could not be reached by the law: “In America, where the constitutionality of wage legislation is still undecided, even when it affects only women, . . . legislation for men has been generally declared unconstitutional and has thus far received little public support.” Therefore, “it has been deemed wiser...

  10. SIX Gender Trap: PROTECTION VERSUS EQUALITY, U.S.A., 1921–1923
    (pp. 108-129)

    The 1920s were critical years for the development of minimum wage policy in the United States. The decade embraced two distinct periods, the turning point in 1923 marked by the Supreme Court’s veto of the District of Columbia minimum wage law in April and the introduction of an Equal Rights Amendment in Congress for the first time in December. Both the tone and the substance of the minimum wage campaign differed before and after 1923. The confidence of the first period was replaced by defensiveness and demoralization in the second, the leadership of female reformers by that of male lawyers....

  11. SEVEN Due Process: THE WELFARE OF THE ECONOMY, U.S.A., 1923–1937
    (pp. 130-150)

    TheAdkinsdecision was issued on 9 April 1923. In a flurry of correspondence between the principals, despair and anger alternated. Frankfurter foresaw “terrible implications” of the adoption of the “Alice Paul theory of constitutional law.” Justice Brandeis wrote privately to Frankfurter that the “fundament [sic] vice” of the decision was “the distortion of ‘due process’ 40 years ago.” Newton D. Baker, president of the National Consumers’ League, found it “disheartening” and spoke of picking over “the wreckage.” Judge Amidon of North Dakota wrote of employers “preying upon the necessities of women,” and lawyer George Alger described the judgment as...

  12. EIGHT Labor and Commerce: THE FAIR LABOR STANDARDS ACT, U.S.A., 1937–1938
    (pp. 151-172)

    Why bother to name an act “fair”? Who would intend anything else? The naming of the Fair Labor Standards Act of 1938, the source of modern minimum wage policy in the United States, was itself a clue that a constitutional preemptive strike as well as a political achievement was planned. Due process called for fair procedures.Adkinshad hinted that a fair wage might be constitutional. And federal antitrust legislation had won judicial approval with the argument that the Commerce Clause of the Constitution allowed Congress to establish the rules of fair competition. Administration lawyers seeking a basis for a...

  13. NINE Conclusion: THE MINIMUM WAGE IN THE 1990S
    (pp. 173-182)

    As the 1990s opened, what had come of the long endeavor to create a universal and equitable minimum wage policy? By comparison with Britain, with its record of pragmatism and inertia, Americans had won much in principle. More than 90 percent of American workers were covered by minimum wage legislation, compared with only 10 percent in Britain.¹ Examined in practice, however, this achievement fades. In each nation, minimum wage rates were low compared with average earnings, in each only a small minority of the work force actually benefited from the statutory wage rates, and in each a majority of those...

  14. ABBREVIATIONS
    (pp. 183-184)
  15. NOTES
    (pp. 185-246)
  16. INDEX
    (pp. 247-255)