History 146B
Open Shops:
Race, Gender, and Law at Work
TO B I A S H I G B I E
U C L A H I S TO RY D E PA RT M E N T
EMAIL: HIGBIE@UCLA.EDU
Linking production
and social
reproduction
Women’s Trade Union
League (WTUL).
https://jwa.org/media/seal-of-national-womens-trade-union-league
Alice Kessler-Harris,
“The Paradox of Motherhood”
The entry of large numbers of women into the
industrial labor force compelled legislatures and
the courts to consider how women could
simultaneously exercise the freedom of contract
implicit in citizenship and demand the protection
of the police power of the state to preserve their
own health and that of their present and future
families. (p. 225)
Lecture Outline
I. Social reproduction & the market
II. Liberty of contract & police powers
III. Merely a legal distinction
IV. Justifying federal power
Robots, again
Who controls the production of new Robots?
Too much poverty
“The process and its ideological justifications led to
deteriorating working and living conditions for all
workers and created special concerns about
whether or not family life among the least skilled
and most vulnerable might deteriorate to the point
where the poor would no longer be trained to
participate in the labor force.”
--Kessler-Harris, p. 225
Social reproduction
qProduction: new goods
qReproduction: new workers
qSocial reproduction: remaking society on an
ongoing basis
q“Separate Spheres”: stark divide between public
and private, men = public, women = private
qUn/under-paid labor of social reproduction
Lecture Outline
I. Social reproduction & the market
II. Liberty of contract & police powers
III. Merely a legal distinction
IV. Justifying federal power
Liberty of contract & the
police power of the state
Homestead Strike, 1892
Populist fusion w/
Democratic Party, 1896
Pullman Strike/Boycott, 1894
AFL Responses
qAfter economic recovery:
resurgent trade union militancy
qStrategic engagement with
mainstream political allies
(increasingly, Democrats)
qFight radicals within the ranks
qModest organizational
experimentation
qFederal Unions
qCity Labor Councils
Samuel Gompers, leader of the
AFL 1886-1894, 1895-1924
Lochner v. New York (1905)
Under the 14th Amendment: “no State can
deprive any person of life, liberty or property
without due process of law. The right to
purchase or to sell labor is part of the liberty
protected by this amendment unless there
are circumstances which exclude the right.”
Anti-Boycott
A combination of labor organizations and the members
thereof, to compel a manufacturer whose goods are almost
entirely sold in other States to unionize his shops and, on his
refusal so to do to, boycott his goods and prevent their sale
in States other than his own until such time as the resulting
damage forces him to comply with their demands is, under
the conditions of this case, a combination in restraint of
interstate trade or commerce
Loewe v. Lawlor (Danbury Hatters)
Muller v Oregon (1908)
“This Court takes judicial cognizance of all matters of
general knowledge -- such as the fact that woman's physical
structure and the performance of maternal functions place
her at a disadvantage which justifies a difference in
legislation in regard to some of the burdens which rest upon
her.
“As healthy mothers are essential to vigorous offspring, the
physical wellbeing of woman is an object of public interest.
The regulation of her hour of labor falls within the police
power of the State, and a statute directed exclusively to
such regulation does not conflict with the due process or
equal protection clauses of the Fourteenth Amendment.”
Regulating women’s labor
“Failing to establish effective legal grounds for
regulating capital’s ability to buy labor, reformers
turned to women as examples of what the state
might appropriately do and sometimes offered
them up as the vanguard of state activity.”
◦ --Kessler-Harris, p. 229
Coppage v. Kansas (1915):
“Yellow-Dog Contracts”
And, since it is self-evident that, unless all things are held
in common, some persons must have more property than
others, it is from the nature of things impossible to uphold
freedom of contract and the right of private property
without at the same time recognizing as legitimate those
inequalities of fortune that are the necessary result of the
exercise of those rights. But the 14th Amendment, in
declaring that a state shall not 'deprive any person of life,
liberty, or property without due process of law,' gives to
each of these an equal sanction; it recognizes 'liberty' and
'property' as coexistent human rights, and debars the
states from any unwarranted interference with either.
Lecture Outline
I. Social reproduction & the market
II. Liberty of contract & police powers
III. Merely a legal distinction
IV. Justifying federal power
Plessy v. Ferguson (1896)
“A statute which implies merely a legal distinction
between the white and colored races -- a
distinction which is founded in the color of the two
races and which must always exist so long as white
men are distinguished from the other race by color
-- has no tendency to destroy the legal equality of
the two races, or reestablish a state of involuntary
servitude.”
Ozawa vs. US: Assimilation or Race?
“In name I am not an American, but at
heart I am a true American."
Berkeley High grad, attended UC,
Christian, English-speaking, sales clerk,
etc.
Pacific Coast Japanese Assoc.
Ozawa: “free white person” = person
of good character
Ozawa: neither Black nor Chinese
SCOTUS: it’s common knowledge that
Japanese aren’t white
Takao Ozawa, 1875-1936
U.S. vs. Thind: Scientific and popular racism
Born in Punjab, India; to the US 1912;
attended U of California; enlisted in US
Army during WWI
Scientific definition of “Caucasian”
includes Indians
SCOTUS: “It may be true that the
blond Scandinavian and the brown
Hindu have a common ancestor in the
dim reaches of antiquity, but the
average man knows perfectly well that
there are unmistakable and profound
differences between them to-day…”
Bhagat Singh Thind
(1892-1967)
Lecture Outline
I. Social reproduction & the market
II. Liberty of contract & police powers
III. Merely a legal distinction
IV. Justifying federal power
Labor’s Progressive Allies
Academic allies
John R. Commons, Professor of
Economics, Univ. of Wisconsin
◦ John R. Commons
Class Partisans
◦ Frank Walsh (USCIR)
Women’s reform network
◦ Settlement houses
◦ Women’s Trade Union League
Margaret Robbins, WTUL
Frank Walsh, pro-labor attorney
Chair, USCIR.
A Tale of Two Commissions
Immigration Commission
§New immigration as
social problem
§Social survey of
immigrant workers &
communities
§Eugenic analysis of
racial hierarchy to justify
restriction
USCIR: Research, Publicity & Policy
Reaction to violence between
organized workers and
employers
Documents workers’ lack of
civil liberties
Split report reflects conflict
between corporate liberals and
state-oriented reformers
Competing USCIR Final
Reports
WALSH REPORT
COMMONS REPORT
income inequality, unemployment, Potential for class harmony hurt by
denial of workers’ rights cause
competition for power between
industrial unrest
workers’ & employers
inheritance tax on wealthy to pay
for education & public works
Expert investigations to guide
reform
right of labor to organize and
bargain collectively
Tri-partite commissions to set
labor standards & mediate
disputes
Wartime Economic Policies:
“American Standard of Living”
Gompers: The war will be an
American workingman s war,
conducted for American
workingmen, by American
workingmen.
National War Labor Board (19181919)
Other wartime boards: Railroad
Admin; Fuel, food, employment
service have impact on workplaces
Promote purchase of Liberty Bonds
as form of savings and war funding
Industrial Democracy as vision of state power
America has the established institutions of democracy through
which her people can reorganize their industries into harmony
with their government. Accompanying this advance the
government can be mutualized to aid the general welfare. But
to mutualize our government without at the same time
democratizing our industries will be but sham statesmanship. To
interweave our present industrial and governmental fabric will
only weaken both. An industrial oligarchy and a political
democracy will not work well together.
--Donald Richberg, New Republic (May 12, 1917)
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