As the United States industrialized, its state constitutions began to include protections for laborers. In this article, I describe the origins of these constitutional provisions and ask why labor organizations and other reformers pursued their inclusion in state constitutions. I argue that they saw state constitutions as a vehicle to prompt reluctant legislatures to pass protective statutes, to entrench existing protections against future legislatures, to safeguard labor legislation from constitutional challenges in state courts, and to facilitate further union organizing. Labor activism in this arena is particularly interesting in light of the literature on constitutional change, which contends that constitutional development is a tool through which actors attempt to usher courts into political conflicts; in contrast, I will argue that unions turned to constitutional change in large part to exclude courts from policymaking. Further, the union activism on behalf of constitutional change serves as a challenge to the prominent view among many scholars of American political development and law that judicial hostility to worker rights and union organizing discouraged unions from demanding state protection or institutionalizing their demands through law.
1. See, for example, Corwin Edward, “The Constitution as Instrument and as Symbol,” American Political Science Review 30, no. 6 (1936); Llewellyn Karl, “A Realistic Jurisprudence—the Next Step,” Columbia Law Review 30, no. 4 (1930).
2. Two prominent examples are Wechsler Herbert, “Toward Neutral Principles of Constitutional Law,” Harvard Law Review 73 (1959) and Bickel Alexander M., The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis, IN: Bobbs-Merrill, 1962).
3. Influential examples include Bork Robert H., The Tempting of America: The Political Seduction of the Law, 1st Touchstone ed. (New York: Simon & Schuster, 1991); Sunstein Cass R., The Partial Constitution (Cambridge, MA: Harvard University Press, 1993).
4. Whittington Keith E., Constitutional Construction: Divided Powers and Constitutional Meaning (Cambridge, MA: Harvard University Press, 1999).
5. For arguments about popular constitutionalism in Congress, see Tushnet Mark V., Taking the Constitution Away from the Courts (Princeton, NJ: Princeton University Press, 1999); Pickerill J. Mitchell, Constitutional Deliberation in Congress: The Impact of Judicial Review in a Separated System, Constitutional Conflicts (Durham, NC: Duke University Press, 2004). For discussions of the way that political parties shape constitutional meaning see Balkin Jack and Levinson Sanford, “The Rehnquist Court and Beyond: Revolution, Counter-Revolution, or Mere Chastening of Constitutional Aspirations,” Fordham Law Review 75 (2006); Gillman Howard, “Party Politics in Constitutional Change: The Political Origins of Liberal Judicial Activism,” in The Supreme Court and American Political Development, ed. Kahn Ronald and Kersch Kenneth Ira (Lawrence: University Press of Kansas, 2006). For an argument about the necessity of networks of legal activists, see Epp Charles R., The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (Chicago, IL: University of Chicago Press, 1998). Finally, for a grassroots take on popular constitutionalism, see Kramer Larry, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford; New York: Oxford University Press, 2004); Siegel Reva B., “Social Movement Conflict and Constitutional Change: The Case of the De Facto Era,” California Law Review 94 (2006).
6. Hirschl Ran, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, MA: Harvard University Press, 2004).
7. Gillman Howard, “How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875–1891,” The American Political Science Review 96, no. 3 (2002).
8. Ginsburg Tom, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge, UK: Cambridge University Press, 2003). See also Whittington Keith E., Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History, Princeton Studies in American Politics (Princeton, NJ: Princeton University Press, 2007).
9. For a valuable study of popular constitutionalism at the state level, see Reed Douglas S., “Popular Constitutionalism: Toward a Theory of State Constitutional Meanings,” Rutgers Law Review 30, no. 4 (1999).
10. Dinan John J., The American State Constitutional Tradition (Lawrence: University Press of Kansas, 2006).
11. Bridges Amy, “Managing the Periphery in the Gilded Age: Writing Constitutions for the Western States,” Studies in American Political Development 22, no. 1 (2008).
12. My goal is not to explain the emergence or nonemergence of a particular type of provision in a particular state's constitution. Instead, I am interested in why such protections appealed to the labor advocates that promoted them. Consequently, I do not conduct a cross-state analysis to predict the existence or nonexistence of labor protections. However, the relevant explanatory variables likely include the relative strength of labor and business groups within the electorate, the level of the state court's hostility to protective labor legislation, as well as the ease with which a state's constitution can be amended. A state with a constitution that is difficult to change, either because of the formal amendment procedure or informal norms, is probably unlikely to include labor provisions, regardless of labor strength or hostile courts. Similarly, a state with a friendly legislature and a friendly court might not acquire labor provisions because its activists felt so secure in the achievement of their policy agenda that they did not need to pursue constitutional change. Finally, states in which labor was too weak to pass any protective legislation to begin with would be unlikely to have the political clout to alter the constitution.
13. See particularly Hattam Victoria Charlotte, Labor Visions and State Power: The Origins of Business Unionism in the United States, Princeton Studies in American Politics (Princeton, NJ: Princeton University Press, 1993); Forbath William E., Law and the Shaping of the American Labor Movement (Cambridge, MA: Harvard University Press, 1991).
14. Novak William J., The People's Welfare: Law and Regulation in Nineteenth-Century America, Studies in Legal History (Chapel Hill: University of North Carolina Press, 1996), 2.
15. For details on the conflicting goals of organized labor and Progressive reformers see O'Brien Ruth, Workers' Paradox: The Republican Origins of New Deal Labor Policy, 1886–1935 (Chapel Hill: University of North Carolina Press, 1998). This problem was particularly acute for women workers, whose participation in the workforce many maternalist Progressive reformers viewed as, itself, problematic. On this point see Hart Vivien, Bound by Our Constitution: Women, Workers, and the Minimum Wage (Princeton, NJ: Princeton University Press, 1994). See also Mink Gwendolyn, The Wages of Motherhood: Inequality in the Welfare State, 1917–1942 (Ithaca, NY: Cornell University Press, 1995), 46–49.
16. Goebel Thomas, “‘A Case of Democratic Contagion’: Direct Democracy in the American West, 1890–1920,” The Pacific Historical Review 66, no. 2 (1997). See also Tarr G. Alan, Understanding State Constitutions (Princeton, NJ: Princeton University Press, 1998), 119–20. For more on the relationship between corporations and state development, see Bensel Richard Franklin, The Political Economy of American Industrialization, 1877–1900 (Cambridge, UK; New York: Cambridge University Press, 2000), Berk Gerald, Alternative Tracks: The Constitution of American Industrial Order, 1865–1917, The Johns Hopkins Series in Constitutional Thought (Baltimore, MD: Johns Hopkins University Press, 1994).
17. Gillman Howard, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, NC: Duke University Press, 1993).
18. In particular see Hattam, Labor Visions and State Power.
19. Orren Karen, Belated Feudalism: Labor, the Law, and Liberal Development in the United States (Cambridge, UK; New York: Cambridge University Press, 1991). Orren's larger point is that labor law in the United States was actually continuous with the British common law of master and servant that developed under a feudal, rather than democratic regime. In fact, Orren argues, this legal tradition was fundamentally anti-democratic and illiberal because it assigned the laborer a fixed (and inferior) status relative to his/her master. Thus, Orren's account demonstrates that courts did not clash with legislators merely because judges were, individually and personally, more conservative than legislators, but because courts were attempting to uphold a fundamentally feudal set of legal relationships, while legislatures were operating within a basically democratic framework.
20. Hartz Louis, The Liberal Tradition in America; an Interpretation of American Political Thought since the Revolution, 1st ed. (New York: Harcourt, 1955), 223.
21. Rogers Smith has famously demonstrated the influence of multiple ideological traditions in American political thought. In addition to liberalism, these include ascriptive hierarchical thinking (or racism) and republicanism. Smith Rogers M., Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven, CT; London: Yale University Press, 1997). Sean Wilentz has documented the strong influence of republican ideology on American Labor. See Wilentz Sean, Chants Democratic: New York City & the Rise of the American Working Class, 1788–1850 (New York: Oxford University Press, 1984). Karen Orren has argued that pre-New Deal American labor law was actually feudal, rather than liberal. See Orren, Belated Feudalism. Ruth O'Brien has argued for the importance, not of liberal individualism, in shaping New Deal labor policies, but instead of the corporatist theory of responsible unionism. See O'Brien, Workers' Paradox.
22. Forbath, Law and the Shaping of the American Labor Movement.
23. In making these liberal, antistatist arguments, the AFL invoked the federal Constitution. James Pope demonstrates that the Thirteenth Amendment played a large role in labor's rhetoric. According to Pope, the core of Labor's argument was that the Thirteenth Amendment should be interpreted as a fundamental guarantee of labor rights. They argued that the Constitution's prohibition on enslavement made it illegitimate to outlaw labor strikes because, without the ability to strike, laborers could not consider themselves truly free. See Pope James Gray, “Labor's Constitution of Freedom,” Yale Law Journal 106, no. 4 (1997). Forbath notes that labor's Thirteenth Amendment arguments were often entwined with First Amendment arguments. See Forbath, Law and the Shaping of the American Labor Movement, 139. When labor was not allowed to stage meetings, parades, peaceful protests, or strikes, the AFL also invoked the First Amendment, arguing that its activism was protected by the constitutional guarantees of freedom of speech and assembly.
24. Forbath, Law and the Shaping of the American Labor Movement, 130.
25. Hattam, Labor Visions and State Power, 9.
26. Ibid., 206.
27. Greene Julie, Pure and Simple Politics: The American Federation of Labor and Political Activism, 1881–1917 (Cambridge, UK; New York: Cambridge University Press, 1998).
28. Clemens Elisabeth Stephanie, The People's Lobby: Organizational Innovation and the Rise of Interest Group Politics in the United States, 1890–1925 (Chicago, IL: University of Chicago Press, 1997), 92.
29. The Republicans, for example, only offered the tariff (already a part of their political agenda), which they argued would protect American labor from foreign competition. Similarly, Democrats responded to labor predominantly by arguing that their free silver policy was a solution to unemployment. See Bensel, The Political Economy of American Industrialization, 1877–1900, 148.
30. Clemens, The People's Lobby, 44.
31. Ibid., 68.
32. United States Industrial Commission et al. , “Report of the Industrial Commission on Labor Legislation Including Recommendations as to General Legislation, and Digests of the Laws of the States and Territories Relating to Labor Generally, to Convict Labor, and to Mine Labor” (Washington, DC: GPO, 1900).
33. John Joseph Wallis, “NBER/University of Maryland State Constitution Project,” (2007).
34. Thorpe Francis Newton, The Federal and State Constitutions: Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America, 7 vols. (Washington, DC: GPO, 1909).
35. Although many state constitutions required or enabled legislatures to regulate railroads, banks, and other corporations, I excluded these provisions if they did not specifically address employment. I also excluded child labor provisions, provisions that address the right to work or the right to unionize, as well as provisions that merely required the establishment of a labor commission or created a new office. While the creation of bureaus of labor and offices of inspectors were often the first steps to the passage of regulation, provisions that merely created these institutions but did not require or even empower them to regulate employment seemed significantly different from constitutionalizing protections themselves. Because the protections to work and unionize are often aimed at stopping government from interfering with labor relations, I have not included them in this list of protections that government must actively provide. I excluded child labor from this analysis because of the widespread and nearly successful campaign to add an anti-child labor amendment to the federal Constitution. It seems likely that because of this federal campaign, a different political dynamic was at work in the inclusion of these provisions in state constitutions.
36. “The Right to Live,” Toledo Union Leader, August 9, 1912.
37. As cited in Dinan, The American State Constitutional Tradition, 190–91.
38. A delegate to the Nebraska constitutional convention even explained his use of permissive language: “It seems to me that the decision of our court in Lowe v. Rees Printing Company makes this word ‘may’ particularly applicable. That was law which intended to fix the hours of labor and compensation. That is just what this proposal opens the way for… . The word ‘may’ thus becomes co-ordinate with those other constitutional inhibitions.” Nebraska Constitutional Convention, Journal of the Nebraska Constitutional Convention: Convened in Lincoln, December 2, 1919, 2 vols. (Lincoln, NE: The Kline publishing Co., 1921). Also cited and discussed in Dinan John J., “Framing a ‘People's Government’: State Constitution-Making in the Progressive Era,” Rutgers Law Journal 30 (1999).
39. The labor organizations and progressive reformers who were primarily concerned with the welfare of working women tended to support protective legislation and constitutional amendments. For instance, in her capacity as Illinois chief factory inspector, Florence Kelley bemoaned the fact that the state supreme court had based its decision to nullify an eight-hour law in part on the federal constitution. Kelley explained in her third annual report that, if the court had only based its decision on the state constitution, that constitution could have been altered to allow for a reenactment of the law. See page 238 of Sklar Kathryn Kish, Florence Kelley and the Nation's Work: The Rise of Women's Political Culture, 1830–1900 (New Haven, CT: Yale University Press, 1995). Similarly, the Women's Trade Union League (WTUL) was an early advocate of protective legislation and broadly supportive of the state constitutional amendments. For instance,the WTUL's official journal, Life and Labor, discussed a Wisconsin court's nullification of a workmen's compensation law, predicting “there will also be a constitutional amendment which will guarantee the enforcement of these humanitarian laws as well as a curtailment of the prerogatives of the supreme court judges.” See “Wisconsin Compensation Law,” Life and Labor 4, no. 2 (1914). A Los Angeles branch of the WTUL also worked energetically to secure a constitutional amendment to California's constitution in the hopes that the amendment would protect existing minimum wage laws for women. See Katz Sherry, “Socialist Women and Progressive Reform,” in California Progressivism Revisited, ed. Deverell William Francis and Sitton Tom (Berkeley: University of California Press, 1994).
40. For an argument about the sporadic involvement of the general public in federal constitutional change, see Ackerman Bruce A., We the People: Transformations, vol. 2 (Cambridge, MA: Belknap Press of Harvard University Press, 1998).
41. For a detailed description of the temperance movement's attempts to change state constitutions see Szymanski Ann-Marie E., Pathways to Prohibition: Radicals, Moderates, and Social Movement Outcomes (Durham, NC: Duke University Press, 2003). See also Buck Solon J., The Granger Movement: A Study of Agricultural Organization and Its Political, Economic and Social Manifestations, 1870–1880, vol. 19, Harvard Historical Studies (Cambridge, MA: Harvard University Press, 1913). Buck describes the Grangers' attempts to regulate railroads in Illinois through a constitutional convention on page 127.
42. State constitutional revision became commonplace in the nineteenth century: “From 1861 to 1900, twenty states revised their constitutions, some several times, adopting forty-five new constitutions in all. Even this figure underestimates the level of state constitution-making; for voters also rejected several proposed constitutions, including six from 1877 to 1887. Of those states that joined the Union from 1800 to 1850, only two had not revised their constitutions by century's end; altogether, ninety-four state constitutions were adopted during the nineteenth century” (Tarr, Understanding State Constitutions, 94).
43. Bridges, “Managing the Periphery in the Gilded Age,” 42.
44. Anthony McGinnis, “The Influence of Organized Labor on the Making of the Arizona Constitution” [dissertation] (University of Arizona, 1930)., quoting from Arizona Daily Star, July 8, 1910. p. 8.
45. Louisiana Constitutional Convention, Debates in the Convention for the Revision and Amendment of the Constitution of the State of Louisiana: Assembled at Liberty Hall, New Orleans, April 6, 1864 (New Orleans, LA: W.R. Fish, Printer to the Convention, 1864), 418.
46. McGinnis, “The Influence of Organized Labor on the Making of the Arizona Constitution,” 33.
47. Bryant Keith L. Jr., “Labor in Politics: The Oklahoma State Federation of Labor During the Age of Reform,” Labor History 11, no. 3 (1970).
48. Enyeart John P., “‘The Exercise of the Intelligent Ballot’: Rocky Mountain Workers, Urban Politics, and Shorter Hours, 1886–1911,” Labor: Studies in Working-Class History of the Americas 1, no. 3 (2004).
49. “Laws Committee Votes a Labor Bill,” New York Times, July 12, 1928.
50. “Labor Unionists Have Put Candidates in the Field,” Michigan Union Advocate, July 19, 1907.
51. “Workingmen and the Convention,” New York Times, October 24, 1893.
52. “Constitution Makers Finish Labors,” Toledo Union Leader, May 17, 1912.
53. “To Urge Constitution: Ohio Federation of Labor Plans Campaign for Adoption of Laws to Help Workers,” Toledo Union Leader, July 28, 1912.
54. For instance, the eight-hour amendment to Colorado's constitution received the support of both the state's major political parties in 1902, and passed the statewide referendum on ratification by a nearly three-to-one margin. See Wright James Edward, The Politics of Populism: Dissent in Colorado, Yale Western Americana Series, vol. 25 (New Haven, CT: Yale University Press, 1974), 235.
55. For example, the Montana Federation of Labor promoted a 1936 constitutional amendment about hours regulation by contacting labor unions throughout the state, urging them to support the amendment, and publishing many editorials, which responded to the charges leveled against the amendment by its opponents. For the entire month of October, the Montana Labor News published the slogan “Vote for the Eight-Hour Amendment” on its front page, above the paper's nameplate. The paper also recounted the efforts of the state Federation of Labor as well as the state Mining Council of Montana, writing “The State Mining Council of Montana, which includes representatives of all mining and smelter organizations in the State of Montana, vigorously urged the necessity of the passage of the 8-Hour Amendment at its last meeting and notified the Central Labor Body of Butte of its action. The State Mining Council also praised the efforts of the Montana State Federation of Labor in arousing the people to the need of passing this proposed amendment. Nothing that has come up before the people in recent years, according to the report of the Council, is so vital to their interest as the passage of this 8-hour law” (Montana Labor News, Oct. 8, 1936, 1). After the amendment passed, the Montana Labor News ran a long column thanking those labor advocates and union leaders who “fought for the amendment and spent their time and money” (Montana Labor News, Nov. 12, 1936, 1).
56. See, for example, Urofsky Melvin, “State Courts and Protective Legislation During the Progressive Era: A Reevaluation,” The Journal of American History 72, no. 1 (1985).
57. As cited in Forbath, Law and the Shaping of the American Labor Movement. p. 41.
58. As William Ross describes, judicial rulings on labor questions also created a more general fervor for curbing the power of the courts, often through constitutional amendments that would allow for democratic recall of unpopular judges or the negation of their decision. See Ross William G., A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890–1937 (Princeton, NJ: Princeton University Press, 1994). John Dinan identifies these protective labor provisions as part of the larger movement to use state constitutions in an effort to reign in courts. See Dinan John J., “Court-Constraining Amendments and the State Constitutional Tradition,” Rutgers Law Journal 38, no. 4 (2007). Douglas Reed also notes this phenomenon in Reed, “Popular Constitutionalism.”
59. Schattschneider E. E., The Semisovereign People: A Realist's View of Democracy in America (Hinsdale, IL: Dryden Press, 1975).
60. Groat George, “The Eight Hour and Prevailing Rate Movement in New York State,” Political Science Quarterly 21, no. 3 (1906).
61. People ex rel. Rodgers v. Coler, 166 N. Y. 1, 59 N. E. 716, 52 L. R. A. 814, 82 Am. St. Rep. 605 (1901); People ex rel. Treat v. Coler, 166 N. Y. 144, 59 N. E. 776 (1901); People v. Orange County Road Construction Company, 175 N. Y. 84, 67 N. E. 129, 65 L. R. A. 33 (1903); People ex rel. Cossey v. Grout, 179 N. Y. 417, 72 N. E. 464 (1904).
62. Groat, “The Eight Hour and Prevailing Rate Movement in New York State.”
63. It is instructive to compare this constitutional response to the invalidation of legislation to labor's responses to its other major complaint against courts in this period: their continued issuance of injunctions to end strikes and hamper labor organizing. Unlike state courts' rulings on constitutional grounds, which could only be overcome by amending the constitutional itself, labor injunctions were typically grounded in either common law or antitrust legislation. Thus, it seemed possible to prevent the courts from issuing antilabor injunctions through legislation alone, that is without a constitutional amendment. As Felix Frankfurter explained in a 1929 law review article, “Reform of abuses revealed by the use of labor injunctions therefore presents a variety of problems for legislative solution. Legislation might immunize activities of organized labor from all tort liability—pecuniary responsibility, as well as restraint of conduct—or merely define the conduct that is to be deemed wrong. Again, legislation might withdraw from the scope of injunctive relief activities normally prevalent in labor controversies, or merely fashion a procedure especially suitable to injunctions in such cases. Legislation has entered all these fields.” See Frankfurter Felix and Greene Nathan, “Legislation Affecting Labor Injunctions,” Yale Law Journal 38, no. 7 (1929), 880.
This is not to say that labor organizations never tried to address their injunction problems through constitutions. The Arizona Constitutional Convention of 1910 considered the addition of an anti-injunction provision to its constitution, but ultimately rejected these proposals. See page 208 of Mandel Paul, “Labor Politics, Hayden Style,” in American Labor in the Southwest: The First One Hundred Years, ed. Foster James C. (Tucson: University of Arizona Press, 1982). In addition, the New York Constitution was amended in 1938 to include the statement that “Labor of human beings is not a commodity nor an article of commerce and shall never be so considered or construed.” This declaration was taken directly from the Clayton Act of 1914, a piece of congressional legislation designed to prevent courts from issuing labor injunctions on the basis of antitrust laws. However, the availability of legislative remedies for labor's injunction problem drove labor activists and their advocates to pursue legislative remedies at both the federal and state levels. Constitutional changes solved problems with the courts that were more difficult, if not impossible, to address through statute.
64. Groat, “The Eight Hour and Prevailing Rate Movement in New York State.”
65. Workingman's Federation of the State of New York, “Official Proceedings of the Workingman's Federation of the State of New York” (1906).
66. People ex rel. Williams Engineering & Contracting Co. v. Metz, 85 N.E. 1070 (1908).
67. Orren, Belated Feudalism.
68. Ibid., 74.
69. Kelley Florence, “The United States Supreme Court and Utah Eight-Hours' Law,” The American Journal of Sociology 4, no. 1 (1898).
70. Gaventa John, Power and Powerlessness: Quiescence and Rebellion in an Appalachian Valley (Urbana: University of Illinois Press, 1980).
71. “All These Laws Will Be in Danger If the Eight Hour Amendment Is Defeated by the People November 3,” Montana Labor News, October 29, 1936.
72. State ex rel. Kern v. Arnold, 100 Mont. 346, 49 P.2d 976, Mont. (1935).
73. “History of the Shorter Working Day Constitutional Amendment in Legislature,” Montana Labor News, October 22, 1936.
75. “All These Laws.”
76. State v. Safeway Stores, 76 P.2d 81 (1938).
77. Article 18, Section 4, Amendment 43.
78. Grodin Joseph R., Massey Calvin R., and Cunningham Richard B., The California State Constitution: A Reference Guide, Reference Guides to the State Constitutions of the United States, no. 11 (Westport, CT: Greenwood Press, 1993).
79. See page 274 of Hundley Norris, “Katherine Philips Edson and the Fight for the California Minimum Wage, 1912–1923,” The Pacific Historical Review 29, no. 3 (1960).
80. Ibid. While there were movements among both male and female labor leaders for the adoption of gender-neutral minimum wage laws, led by Gompers, the AFL was staunchly opposed to minimum wage laws for men and women, believing that labor would be better served by establishing a family wage for male breadwinners directly through their employers. The National Women's Trade Union League and middle-class female Progressive reformers, like Florence Kelley, generally supported a minimum wage for both men and women, but settled for protective legislation for women, some out of the belief that protective legislation for women was better than no protective legislation at all. Others were motivated by maternalist sentiments, believing that women needed special state protection because of their role as mothers coupled with their relative weakness when compared to male laborers. See Hart, Bound by Our Constitution,.especially pages 78–85.
81. See page 277 of Hundley, “Katherine Philips Edson and the Fight for the California Minimum Wage, 1912–1923.”
82. For a more detailed account, see Katz, “Socialist Women and Progressive Reform,” 131. See also Skocpol Theda, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge, MA: Belknap Press of Harvard University Press, 1992), 415.
83. Flint Winston Allen, The Progressive Movement in Vermont (Washington, DC: American Council on Public Affairs, 1941).
84. Lochner v. New York 198 U.S. 45 (1905).
85. Gillman, The Constitution Besieged; Whittington Keith E., “Congress before the Lochner Court,” Boston University Law Review 85, no. 3 (2005).
86. McCloskey Robert G., The American Supreme Court, The Chicago History of American Civilization (Chicago, IL: University of Chicago Press, 1960), 151–52.
87. Phillips Michael J., The Lochner Court, Myth and Reality: Substantive Due Process from the 1890s to the 1930s (Westport, CT: Praeger, 2001), 57.
88. State constitutions that did not contain the phrase “due process of law” often contained provisions that were interpreted in equivalent ways by state courts.
89. Holden v. Hardy 169 U.S. 366, 18 S.Ct. 383 (1898).
90. Phillips, The Lochner Court, Myth and Reality.
91. Warren Charles, “The Progressiveness of the United States Supreme Court,” Columbia Law Review 13 (1913).
92. Lewis William Draper, “A New Method of Constitutional Amendment by Popular Vote,” Annals of the American Academy of Political and Social Science 43 (1912).
93. Nebraska Constitutional Convention, Journal of the Nebraska Constitutional Convention: Convened in Lincoln, December 2, 1919.
94. Parkinson Thomas I., “The Future of the Workmen's Compensation Amendment,” Proceedings of the Academy of Political Science in the City of New York 5, no. 2 (1915).
95. American Association for Labor Legislation, “Constitutional Amendments Relating to Labor Legislation and Brief in Their Defense: Submitted to the Constitutional Convention of New York State by a Committee Organized by the American Association for Labor Legislation” (1915).
96. In re Eight-Hour Law, 21 Colo. 29, 39 P. 328 (1895).
97. Holden v. Hardy, 169 U.S. 366 (1898).
98. “Eight Hour Law Decision: Labor Men and Lawyers Anxious to See Text of Opinion,” New York Times, December 3, 1903.
99. In re Morgan, 26 Colo. 415, 58 P. 1071, Colo. (1899).
100. Lonsdale David L., “Chicanery in Colorado,” Red River Valley Historical Review 4, no. 3 (1979); Enyeart, “‘The Exercise of the Intelligent Ballot’.”
101. This phenomenon was also evident in California. In an explanation of the purpose of California's minimum wage amendment for women in 1914, a state assemblyman explained: “A similar law has been sustained by the Oregon courts and is now before the United States supreme court … It is expected that the United States supreme court will hold as it has with the eight hour law—‘legislation that is not in conflict with the federal constitution, but is an extension of police power of the state.’ To be sure that nothing in our state constitution will prevent this great act of justice and mercy being done to protect the women of this state, vote ‘Yes’ on Assembly Constitutional Amendment No. 90” (“Minimum Wage” in Amendments to Constitution and Proposed Statutes with Arguments Respecting the Same: To be Submitted to the Electors of the State of California at the General Election on Tuesday November 3, 1914, Certified by the Secretary of State and Printed at the State Printing Office, 1914, 29).
102. Lovell George I., Legislative Deferrals: Statutory Ambiguity, Judicial Power, and American Democracy (Cambridge, UK; New York: Cambridge University Press, 2003).
103. Dinan, “Court-Constraining Amendments and the State Constitutional Tradition.”
104. “Political Notes from Arizona,” Miners Magazine, July 7, 1910.
105. “For the O.F. Of L.” Toledo Union Leader, September 6, 1912.
106. “On to Canton, Urges O.F. Of L.,” Toledo Union Leader, September 27, 1912.
107. Ohio State Federation of Labor, “Proceedings of the Twenty-Ninth Annual Convention of Ohio State Federation of Labor,” Canton, OH, Oct. 14–19, 1912.
108. American Association for Labor Legislation, “Topical Index by States,” American Labor Legislation Review (1913).
109. “That Constitutional Convention,” Toledo Union Leader, May 3, 1912, 2.
110. For a description of labor's influence in the Arizona legislature in the years after the constitutional amendment passed, see Byrkit James W., Forging the Copper Collar: Arizona's Labor Management War of 1901–1921 (Tucson: University of Arizona Press, 1982), 52.
111. McCann Michael W., Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization, Language and Legal Discourse (Chicago, IL: University of Chicago Press, 1994), 11.
112. “That Constitution,” Miners Magazine, January 5, 1911.
113. Colorado State Federation of Labor, “Report of Proceedings of the Seventh Annual Convention” (Trinidad, CO, June 9–13, 1902).
114. “An Appeal for an Eight-Hour Fund,” Miners Magazine, August, 1903.
115. “Oklahoma Shows the Way: Government by Injunction Abolished—Michigan Should Follow Suit,” Michigan Union Advocate, Nov. 1, 1907.
116. “Labor's Bill of Rights,” The Garment Worker, September 17, 1915.
117. National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1 (1937).
118. Orren, Belated Feudalism, 210.
119. For example, see Kramer, The People Themselves; Siegel Reva B., “She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family,” Harvard Law Review 115, no. 4 (2002).
120. Tom Burke and Jeb Barnes describe the methodological difficulties of determining the empirical effects of rights politics in their article entitled “Is There an Empirical Literature on Rights,” forthcoming in Studies in Law, Politics, and Society.
121. Nebraska was a more complicated case since the constitutional amendment passed so long after the court case to which it was responding and did not pertain to an identical policy. While delegates passed this constitutional amendment in response to a state supreme court case overturning an eight-hour law for both men and women, a similar law for women alone was actually passed and even upheld by the state supreme court before the constitutional revision of 1920.
122. People ex rel. Williams Engineering & Contracting Co. v. Metz, 85 N.E. 1070 (N.Y. 1908).
123. Lonsdale David L., “The Fight for an Eight-Hour Day,” The Colorado Magazine 43, no. 4 (1966). See also Enyeart, “‘The Exercise of the Intelligent Ballot’.”
124. Commonwealth v. Hillside Coal Co. 58 S.W. 441 (1900).
125. The state supreme court explained that the state constitution “makes it the duty of the legislature to ‘pass laws to provide for the health and safety of employees in factories, smelters and mines.’ And we are not authorized to hold that the law in question is not calculated and adapted in any degree to promote the health and safety of persons working in mines and smelters. Were we to do so, and declare it void, we would usurp the powers entrusted by the constitution to the lawmaking power” (Holden v. Hardy, 14 Utah 71 ).
126. Holden v. Hardy, 169 U.S. 366 (1898).
127. Zancanelli v. Central Coal & Coke Co., 173 Pac. Rep. 981 (1918).
128. For an valuable discussion of states' tendencies to practice “comparative politics” when making social policy, see pages 68–73 of Clemens, The People's Lobby.
129. For example, on January 8, 1915, The Garment Worker reported that “the voters of Wyoming adopted the constitutional amendment which provides for workmen's compensation … this maintains the proportion of one-half of the states accepting this principle, and equalizes the loss sustained last month by the Kentucky Court of Appeals when it held that the compensation act of the state was unconstitutional.”
I am extremely grateful for the time and advice of Keith Whittington, Paul Frymer, and Amy Bridges, who, over the course of many years, have all read many versions of this paper. I would also like to thank Kim Scheppele, Dirk Hartog, John Dinan, Debbie Becher, Justin Crowe, Michael Cutrone, Tiffany Lennon, and Katherine Tunning for their careful readings and sound advice. Princeton's Law Engaged Graduate Students group offered a valuable space to workshop an early draft, and Elizabeth Bennett and David Hollander were invaluable resources as I conducted this research. Thank you also to Elizabeth Clemens and Studies' anonymous reviewers, whose insights and feedback clarified and strengthened my arguments.
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