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Interesting Article on Labor Legislation in the Progressive Era:

I just read a very interesting article by Thomas C. Leonard, Protecting Family and Race: The Progressive Case for Regulating Women's Work, which appeared in the American Journal of Economics and Sociology in July 2005. If you're at all interested in Progressive Era economists' and reformers' attitudes toward working women, this article is a must read. More generally, Leonard, in this and other pieces, notes that many Progressive Era reformers supported "protective" labor legislation even though they knew that it would lead to unemployment, especially among women, immigrants, and African-Americans. Rather than being disturbed by this side effect of the legislation, many reformers argued that the disemployment caused to these groups was a social benefit, because it prevented "inferior" workers who were willing to accept low wages because of their low consumption from driving down wages for a white Anglo-Saxon Protestant male workers, who needed higher wages to support themselves and their families. This article can be usefully read in conjunction with my Michigan Law Review review essay, Lochner's Feminist Legacy.

UPDATE: Contrary to the tenor of the discussion in the comments, the point of this post has nothing to do with modern debates over labor regulation, much less "progressive" (small p) politics in general. I don't happen to believe that modern liberals are direct descendants of Progressive era reformers; if they were, for example, in law, Griswold, Roe, and Lawrence and Brown (!), for that matter, would have all come out the other way. But there is a tendency, reflected in posts from both sides in the comments, to read the current political spectrum backwards into a very different era, to assume that 1910s "Progressives" were more or less the same as modern "progressives." The overall Progressive ideology of the early 20th century was one that is basically defunct today, yet we still often see historical events through a Progressive lens. In my own area of academic interest, the Progressive era critiques of the Supreme Court's pre-New Deal jurisprudence still dominate many discussions of legal. Yet, for example, does anyone nowadays actually bemoan the demise of the National Industrial Recovery Act in the Schechter case?

Anderson (mail):
The point is valid so long as one remembers that the sexist &racist views of many Progressives were shared by many, if not most, of their conservative opponents.

White men of whatever political stripe tended to be agreed on their own superiority vis-a-vis everyone else.
9.28.2007 3:56pm
r78:
You mean to say that back in 1900 or so, there were "reformers" who had sexist attitudes about women?

Not exactly a revelation since women couldn't even vote at that time.

A far more interesting comparison is to note how this rhetoric is still quite popular today among anti-immigration "conservatives" who assert that all the immigrants are "taking jobs" away from god-fearin' white folks.

So what does it say about our country today when such an obviously absurd idea (absurd at least when applied to women in 1900) is still popular on talk radio?
9.28.2007 4:24pm
Not a conservative:
Anderson:

The point is valid so long as one remembers that the sexist &racist views of many Progressives were shared by many, if not most, of their conservative opponents.



To whatever extent that may be true, note that some Progressives were actively pursuing policies they acknowledged would harm minority workers, which was not a burden, but a benefit of those policies.
9.28.2007 4:30pm
Pon Raul:
More on point is that progressive policies continue to hurt non-whites and non-males. Welfare has done more harm than good for the populations served by welfare. If I was a white racist, I couldn't come up with a better policy for keeping the black people down than welfare.
9.28.2007 4:45pm
David M. Nieporent (www):
The point is valid so long as one remembers that the sexist &racist views of many Progressives were shared by many, if not most, of their conservative opponents.
Yes, but only one side was trying to get the government to enact their sexist &racist views into law.
9.28.2007 5:06pm
Dick King:
Progressives still persue policies that hurt the employment prospects of lower-paid workers to keep the wages of favored higher-paid workers higher still. The lower-paid workers are called "foreigners", either those who reside and want to continue to reside in their own countries, or those who would immigrate. The higher-paid workers, who are likely to outearn the lower-paid workers for the forseeable future under any plausible scenario, are called "good American jobholders" or some such.

-dk
9.28.2007 5:22pm
Steve:
Yes, but only one side was trying to get the government to enact their sexist &racist views into law.

Are you actually serious?
9.28.2007 5:23pm
Mappo (mail):
What the hell does this have to do with Israel?
9.28.2007 5:25pm
vukdog:
I think it has to do with the Agunah.

Seriously though, sounds like an interesting set of articles, and I'm going to check them out when I get some time this weekend.
9.28.2007 5:45pm
Pon Raul:
I think that it has something to do with the DC housing market.
9.28.2007 5:46pm
CrazyTrain (mail):
Speaking of labor, did anyone hear about all those Jews at the Department of Labor in the 1970's? Apparently, McCain's Presidential campaign's national finance chair was very interest in it, and has been lying repeatedly about his involvement in attempting to fire all the Jews at Labor for forty years now. But I forgot that, as DB says, it's really the "Left" and "Daily Kos" that are today's real antisemites. Sorry.
9.28.2007 6:11pm
Bill Poser (mail) (www):
The same can be said about restrictions on immigration of Asians, which were promoted by labor unions many of which were far to the left of unions today and were openly racist.
9.28.2007 6:16pm
Nathan Wagner:
Liberals frequently argue or imply that federalism is permanently tainted and always inherently morally suspect because of its long use as a prop for institutional racism in this country. That argument unfairly imports our post hoc moral indignation against our past into a current debate where it is anachronistic and largely irrelevant. Though racism is not dead in America, it is thoroughly discredited. Even were the states suddenly restored the full powers they possessed in 1860, it is exceedingly unlikely than any would re-institute segregation. The liberal argument from anachronistic moral indignation is both absurd and potentially harmful, there being no guarantee that our national government or the federal courts will always necessarily have a monopoly of virtue vis-a-vis the states.

Why bother importing post hoc moral indignation against racist progressives into the present debate about certain labor policies (whether formally or merely by implication)? The racist progressives are long dead. This sort of exploration says nothing about the inherent worth or usefulness of such policies. It is an irrelevant historical "gotcha" that only brings heat to the debate, not light.
9.28.2007 6:19pm
loki13 (mail):

Liberals frequently argue or imply that federalism is permanently tainted and always inherently morally suspect because of its long use as a prop for institutional racism in this country. That argument unfairly imports our post hoc moral indignation against our past into a current debate where it is anachronistic and largely irrelevant. Though racism is not dead in America, it is thoroughly discredited.


You apparently do not live in the South. Having moved from a Northern state to a Southern state recently, I was shocked at the amount of overt racism. This is not to absolve liberals in Northern States- there is more than a fair share of covert racism.

But bringing this to your point, it is true that there are credible, intellectual arguments in favor of federalism (although I think 1860 federalism argues too far). Unfortunately, there are many who use 'federalism' and, more specifically, 'states rights' as a code word for racism, because, as you point out, you just can't openly appeal to racists today.

So is there a difference between an academic libertarian arguing for increased federalism in a law review article, and a politician arguing for state's rights in Alabama? You betcha.

Unfortunately, this obscure the larger sin made by DB in his post above. The progressives (above) are not in any way similar to the self-titled progressives of today's era. In fact, in many ways, the progressives (pro-religion, anti-immigrant, pro-American) more closely resemble the Democrat/turned Republican base in the South today. Don't let factual history get in the way of confusing terms and an ability to tar your opponents, however.
9.28.2007 6:28pm
Smokey:
...the sexist &racist views of many Progressives were shared by many, if not most, of their conservative opponents.
"B... bu... bu... but conservatives!..."
9.28.2007 6:29pm
Nathan Wagner:
loki,

There's overt racism enough in Northern states too. My brother's good friend had his car taken from him in a mall parking lot, smashed up in a 5 minute joy ride, and cheerfully returned as a vehicle now fitting for him - just because he was black.

Nevertheless, we have come a long way since segregation. And, more to the point, the evidence of racism among 1930's progressives does not defeat the case for instituting similar labor policies today any more than the racism of (now largely politically powerless) "states rights" segregationists defeats the intellectual case for federalism. It is an unhelpful game of historical "gotcha," whether played by liberal or libertarian academics.
9.28.2007 8:35pm
loki13 (mail):
Nathan,

I think you are missing a crucial distinction.

1. States rights is *still* a code word used to appeal to racial prejudice. Is it unfortunate that this influence the conversation about federalism? Yes. Unfortunately, it is sometimes difficult to ascertain whether the advocate for states rights/federalism is doing so for a purely ideological basis (say, libertarianism), is doing so because it is coded language that appeals to racists, or, on some occasions, both (a politician who may believe in federalism but also realizes that couching it in terms of states rights plays well in Mobile).

2. Transposing this issue, it does not make any sense when we're talking about 'progressives'. 'Progressives', as understood at the turn of the century, simply do not exist today (perhaps if Pat Buchanan was pro-Union, pro-farm). What Db is attempting to do, through slight of hand, is confuse an issue through a confusion of terms. A similar tactic is employed against 'Southern Democrats' before the civil rights era (who are now Republicans), or if you were to make an argument that the early Federalist party is similar to the current Federalists.

3. As to racism in the north and the south. Yes. It exists. See Boston, busing. But having lived in both places I can speak only from my own personal experience, and the level of *overt* racism is much higher in the south. That's not always a bad thing- the covert racism in the north can be harder to fight- but it is still shocking.
9.28.2007 8:59pm
Nathan Wagner:

loki,

Thanks for the reply. On (1) I did not at all mean to deny that what you say regarding "states rights" is true. I am making two separate and distinct assertions. First, I am saying that it is not intellectually honest to tar advocates of federalism as ipso facto racists merely because of our country's history. On this we agree. Second, I had been stating that the political power of those who would re-institute state segregation (e.g. of public schools and transport) is so small that, even in the absence of a strong federal hand, they would have no serious chance on a state level. In part, this is because, even in the South, overt racism has been pushed out of the political mainstream. Perhaps I am wrong about this - I have little first-hand experience of the deep South. I'd like your opinion. But saying that racists no longer have enough political power to achieve their objectives is different than saying that they no longer exist - or even that racist politicians no longer exist. I had not been arguing that.

On (2) I understand you, but I am not sure that I agree. You can find modern "progressives" consciously hearkening back to the Progressive era and claiming the mantle of its better policies. Historical Progressives wanted to protect labor - both in terms of wages and in terms of quality of life. Modern "progressives" want to protect labor both in terms of wages (unions) and quality of life (health care). Because the article in question was on labor, I think the policy similarities are relevant. My posts were confined to the merits of the policies, not the name.

That said, the distinctions in outlook between historical Progressives and modern "progressives" that you mention are certainly real - though mapping 1930's Progressive labor regulators onto present-day Republicans does not work well either, especially in terms of economic policy.

Historical "gotcha," whether played on the basis of name or policy, absent any discussion of the merits of present proposals, proves no meaningful intellectual point.

On (3), I'll defer to your experience in terms of comparisons. The incident I mentioned was shocking enough to me.
9.28.2007 10:40pm
Nathan Wagner:
Re: the update

So the point of the post is iconoclasm: Lochner-era decisions oughtn't to be viewed through the Progressive lens as capital striking back at the little guy, but rather, such decisions may be sincere efforts to reverse the racism and sexism that motivated the labor regulations in question.

That's perfectly legitimate, though to overturn the dominant view of the Lochner era (or even seriously amend it) will require proving that equality was a thoroughgoing motivation for the Lochner line of cases. That will be more difficult to do with, for example, child labor laws.

In any case, presuming I now correctly understand that your target was a dominant consensus on legal history and not at all a modern policy debate, my apologies for mis-reading your original post.
9.29.2007 9:34am
DavidBernstein (mail):
That depends on what you mean by "equality." A concern for a certain type of equality motivated Lochner-like decisions, but it's not modern liberal egalitarianism. For historical debate, the more pressing point is that you have to compare Lochner with the available (Progressive) historical alternative, which was a lot less pretty than most are led to believe. It doesn't make much sense to compare, say, George Sutherland with William Brennan, because there were extraordinarily few if any any William Brennans running around in the 1920s, and certainly none on the Supreme Court.
9.29.2007 10:15am
loki13 (mail):
DB,

I apologize if I assumed your post was yet another in a long line of attempts to conflate historical progressivism with modern progressivism, and a misunderstanding of history. Progressivism (as a movement) never attained mass political power, and it is a mistake to characterize either the pre- or post new deal Court as Progressive court.

That said, I am confused by the reasons for your posting. That many in the Progressive movement were xenophobic and and protectionist is not exactly earth-shattering news. So I'm not sure I understand we're you're going with your equivalency-

Because anti-immigrationists from 1910 opposed child labor law, we should have them now?

Or... we should judge policy outcomes in the present from the motives of some of those who proposed them in the past?

To bring this full circle, because federalism supporters in the 1960s were (almost always) racists, we should oppose federalism now?

Call me confused.
9.29.2007 11:34am
liberty (mail) (www):

The overall Progressive ideology of the early 20th century was one that is basically defunct today


I'm not sure if I am misunderstanding your use of the term "Progressive" from that (1890-1920) era. There were two parties titled "Progressive Party" from vaguely that era. One was JFK's (1912) and the other was LaFollette's (1924).

JFK had been a Republican and had campaigned on smaller government and free markets, but as we know, he turned around and became the biggest Corporatist (or soft-socialist) in American history - and his administration was teeming with socialists. LaFollette was himself a socialist. LaFollette's Progressive Party was actually a remodeled socialist party, the new name was used to appeal more broadly but the actors were the same and all the socialist and labor factions endorsed it.

As I understand it, both LaFollette and JFK are considered to be Progressives from that era, and there does seem to be direct lineage from their ideology to the modern "progressive" wing of the Democratic party.

Support for unions, public ownership of railroads and utilities, anti-war and anti-corporate, pro-regulation, pro-labor-law, etc etc etc. The same soft-socialism (or Corporatism) ideology.
9.29.2007 12:58pm
liberty (mail) (www):
Yikes. I'm sorry. I wrote that too fast. Obviously I meant FDR not JFK.
9.29.2007 12:59pm
DavidBernstein (mail):
Loki,

I'll just reiterate that the terms of debate regarding much pre-New Deal history are still (a) the terms that were initiated by the Progressives; (b) often based on the assumption that modern liberals are the direct heirs of the Progressives, when in fact, especially in law, modern liberals took some things from the Progressives, and some from their classical liberal opponents. On the theme of the falseness "whiggish narrative" that assumes that there was a consistent pro civil liberties left against a reactionary anti-civil liberties right, see Ken Kersch, Constructing Civil Liberties.
9.29.2007 2:16pm
Smokey:
loki13:
In fact, in many ways, the Progressives (pro-religion, anti-immigrant, pro-American) more closely resemble the Democrat/turned Republican base in the South today. Don't let factual history get in the way of confusing terms and an ability to tar your opponents, however... Call me confused.
OK. Here's some factual history: Republican William McKinley was the first progressive president. He began the "Progressive Era." Thomas Edison strongly supported his progressive policies, and he supported McKinley in spreading the progressive word. When McKinley was assassinated, his V.P., Teddy Roosevelt, became president, and Roosevelt pushed progressive ideals even farther along. Among other progressive acts, Roosevelt created the Department of [Commerce and] Labor. Roosevelt's progressive ideas were so popular that they swept up every one of his major Leftist opponents, including Eugene Debs; and the Socialist Party's candidate, Silas Swallow; Robert LaFollette, W.J. Bryan and just about everyone else in the country. So, not that it matters at this point, but the fact is that the progressive movement was started by Republicans. The Democrats and farther Left politicians, including those above, came along later for the ride. And of course, just like the slavery issue, Democrats jumped in front of the Progressive Era parade that was begun by Republicans when it was convenient to do so, and in the process changed the meaning of progressive from a policy that benefitted Americans, to an entierly different policy that proposes to control Americans from cradle to grave.

And note that the original article had very little to do with racial politics. Leave that job to a modern day 'progressive.' That is conflating.


''The way to stop discrimination on the basis of race is to stop discrimination on the basis of race.''

-- CJ Roberts
9.29.2007 3:28pm
loki13 (mail):
Smokey.

My posts were about the confusion of terms. I used 'federalism' and 'states rights' as well as other examples (such as the modern day networking group of Federalist having very little to do with the original Federalist party- they're closer to TJ's Democratic party, if anything, in their limited government ideology).

Feel free to protest too much. However, if your normative view is that 'Republicans came up with all the good ideas until Democrats stole them and ruined them..." I'm not sure what that does to illuminate the situation today.
9.29.2007 4:51pm
JosephSlater (mail):
There certainly were "progressive" at the time who didn't want to see blacks or women in skilled/well-paid jobs, and, especially re women, may not have approved of them in the workplace at all. Of course, as the very first response points out, that was at least as true of the opponents of progressives at the time.

More importantly, this line of argument misses the broader context of progressive labor and employment legislation in the era, and, surprisingly for a legal academic, misses the importance of court decisions.

The battle for minimum wages and some form of regulation on hours was a broad, widespread battle in the late 19th and early 20th century, with many strikes and other labor actions being focused on hours issues, and dozens if not hundreds of laws of general application regarding wages and hours being enacted. A great number of these, however, were struck down as unconstitutional. The only types of laws held constitutional in this period, essentially, were those that protected women and those involving "public safety."

For this reason, primarily, some progressives started pushing laws specifically applying to women, and/or arguing that laws of general application really dealt with public safety, not simply relieving workers of having to toil for 60-80 hours a week or more. Notably, there was a split in women's groups over whether "women's protective legislation" laws were at least a good first step toward broader worker protective legislation, or whether it was always wrong to distinguish by gender.
10.1.2007 11:16am