The Fourteenth Amendment and the
Rights Revolution
Muller v. Oregon, 208 U. S. 412 (1908) The statute before the Court in Muller was an Oregon law passed in 1903 that set a maximum of ten hours a day for women employed in factories and laundries. The law was similar to laws passed in many states during what is known as the Progressive Era in an attempt to provide some protection for workers from the harsh consequences of industrialization. The Supreme Court had upheld a similar law for miners in Holden v. Hardy (1898) but then in Lochner v. New York (1905) had struck down a New York law limiting the working day for bakery workers to 10 hours per day. The Court's decision in Lochner put all protective labor legislation limiting the hours of work in jeopardy. The question before the court in each of these cases was whether the state laws, passed pursuant to states' power to protect the health, welfare, and safety of its citizens, interfered with individuals' "freedom of contract" under the 14th Amendment to the Constitution. The phrase "freedom of contract" does not appear in the 14th Amendment. The Court read it into the "due process" clause of Section 1 of the 14th Amendment. In addition to the traditional understanding of due process as a guarantee of correct judicial procedure, the Court in this era read the protection against deprivation of "life, liberty, or property without due process to law" to include a property right in one's labor ("freedom of contract"). The decision of the Court in Muller was unanimous upholding the Oregon law. For a longer introduction to the Muller case see Kermit L. Hall, The Oxford Companion to the Supreme Court of the United States(New York: Oxford University Press, 1992). For more background on protective labor legislation during the Progressive Era see Kathryn Kish Sklar, Florence Kelley & the Nation's Work: The Rise of Women's Political Culture, 1830-1900 (New Haven: Yale University Press, 1995); Nancy Woloch, Muller v. Oregon: A Brief History with Documents (New York: St. Martin's Press, 1996).
Mr. Justice Brewer delivered the opinion of the court: . . . .
It thus appears that, putting to one side the elective franchise, in the matter of personal and contractual rights they stand on the same plane as the other sex. Their rights in these respects can no more be infringed than the equal rights of their brothers. We held in Lochner v. New York, 198 U.S. 45 , 49 L. ed. 937, 25 Sup. Ct. Rep. 539, that a law providing that no laborer shall be required or permitted to work in bakeries more than sixty hours in a week or ten hours in a day was not as to men a legitimate exercise of the police power of the state, but an unreasonable, unnecessary, and arbitrary interference with the right and liberty of the individual to contract in relation to his labor, and as such was in conflict with, and void under, the Federal Constitution. That decision is invoked by plaintiff in error as decisive of the question before us. But this assumes that the difference between the sexes does not justify a different rule respecting a restriction of the hours of labor. . . . .The legislation and opinions referred to in the margin [from Brandeis brief] may not be, technically speaking, authorities, and in them is little or no discussion of the constitutional question presented to us for determination, yet they are significant of a widespread belief that woman's physical structure, and the functions she performs in consequence thereof, justify special legislation restricting or qualifying the conditions under which she should be permitted to toil. Constitutional questions, it is true, are not settled by even a consensus of present public opinion. . . . At the same time, when a question of fact is debated and debatable, and the extent to which a special constitutional limitation goes is affected by the truth in respect to that fact, a widespread and longcontinued belief concerning it is worthy of consideration. We take judicial cognizance of all matters of general knowledge. It is undoubtedly true, as more than once declared by this court, that the general right to contract in relation to one's business is part of the liberty of the individual, protected by the 14th Amendment to the Federal Constitution; yet it is equally well settled that this liberty is not absolute . . . . That woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon the body, and, as healthy mothers are essential to vigorous offspring, the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race. Still again, history discloses the fact that woman has always been dependent upon man. He established his control at the outset by superior physical strength, may, without conflicting with the provisions and this control in various forms, with diminishing intensity, has continued to the present. As minors, thought not to the same extent, she has been looked upon in the courts as needing especial care that her rights may be preserved. Education was long denied her, and while now the doors of the schoolroom are opened and her opportunities for acquiring knowledge are great, yet even with that and the consequent increase of capacity for business affairs it is still true that in the struggle for subsistence she is not an equal competitor with her brother. Though limitations upon personal and contractual rights may be removed by legislation, there is that in her disposition and habits of life which will operate against a full assertion of those rights. She will still be where some legislation to protect her seems necessary to secure a real equality of right. Doubtless there are individual exceptions, and there are many respects in which she has an advantage over him; but looking at it from the viewpoint of the effort to maintain an independent position in life, she is not upon an equality. 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. It is impossible to close one's eyes to the fact that she still looks to her brother and depends upon him. Even though all restrictions on political, personal, and contractual rights were taken away, and she stood, so far as statutes are concerned, upon an absolutely equal plane with him, it would still be true that she is so constituted that she will rest upon and look to him for protection; that her physical structure and a proper discharge of her maternal functions-having in view not merely her own health, but the well-being of the race-justify legislation to protect her from the greed as well as the passion of man. The limitations which this statute places upon her contractual powers, upon her right to agree with her employer as to the time she shall labor, are not imposed solely for her benefit, but also largely for the benefit of all. Many words cannot make this plainer. 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, particularly when done standing, the influence of vigorous health upon the future well-being of the race, the self-reliance which enables one to assert full rights, and in the capacity to maintain the struggle for subsistence. This difference justifies a difference in legislation, and upholds that which is designed to compensate for some of the burdens which rest upon her. We have not referred in this discussion to the denial of the elective franchise in the state of Oregon, for while that may disclose a lack of political equality in all things with her brother, that is not of itself decisive. The reason runs deeper, and rests in the inherent difference between the two sexes, and in the different functions in life which they perform. For these reasons, and without questioning in any respect the decision in Lochner v. New York, we are of the opinion that it cannot be adjudged that the act in question is in conflict with the Federal Constitution, so far as it respects the work of a female in a laundry, and the judgment of the Supreme Court of Oregon is affirmed. Footnotes
In foreign legislation Mr. Brandeis calls attention to these statutes: Great Britain, 1844: Law 1901, 1 Edw. VII. chap. 22. France, 1848: Act Nov. 2, 1892, and March 30, 1900. Switzerland, Canton of Glarus, 1848: Federal Law 1877, art. 2, 1. Austria, 1855; Acts 1897, art. 96a, 1-3. Holland, 1889; art. 5, 1. Italy, June 19, 1902, art. 7. Germany, Laws 1891. Then follow
extracts from over ninety reports of committees, bureaus of statistics,
commissioners of hygiene, inspectors of factories, both in this country
and in Europe, to the effect that long hours of labor are dangerous for
women, primarily because of their special physical organization. The matter
is discussed in these reports in different aspects, but all agree as to
the danger. It would, of course, take too much space to give these reports
in detail. Following them are extracts from similar reports discussing
the general benefits of short hours from an economic aspect of the question.
In many of these reports individual instances are given tending to support
the general conclusion. Perhaps the general scope and character of all
these reports may be summed up in what an inspector for Hanover says:
'The reasons for the reduction of the working day to ten hours-(a) the
physical organization of women, (b) her maternal functions, (c) the rearing
and education of the children, (d) the maintenance of the home-are all
so important and so far reaching that the need for such reduction need
hardly be discussed.'
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