Popular Law-making: A study of the origin, history, and present tendencies of law-making by statuteStimson, Frederic Jesup
History
Popular Law-making: A study of the origin, history, and present tendencies of law-making by statute
Stimson, Frederic Jesup
Legislation -- United States
When we come to hours, the matter is very different. In the first
place, we must be reminded that without a constitutional amendment
you cannot have any direct or indirect legislation, as to general
occupations, on the hours of labor of a man of full age.[1] You can
have regulation of the hours of labor of a woman of full age
in general employments, by court decision, in three States
(Massachusetts, Oregon, and Illinois), the Massachusetts decision,
carelessly rendered in 1876, without citing any authority whatever,[2]
being based apparently on a vague notion of general sanitary reasons,
without argument or apparently due consideration of the historical and
constitutional law; but the Oregon case,[3] decided both by the State
Supreme Court and by the Federal Court in so far as the Fourteenth
Amendment was concerned, after most careful and thorough discussion
and reasoning, reasserted the principle that a woman is the ward of
the state, and therefore does not have the full liberty of contract
allowed to a man. Whether this decision will or will not be pleasing
to the leaders of feminist thought is a matter of considerable
interest. A similar statute in Illinois had been declared
unconstitutional twenty years before, largely on the ground that
to limit or prohibit the labor of woman would handicap her in her
industrial competition with man, pointing out also that the Illinois
Constitution itself prescribes and requires that the rights of the
sexes should in all respects be identical, save only in so far as jury
and militia service and political rights were concerned. A new statute
since the Oregon decision has been passed in Illinois and the law was
sustained, reversing the older case. On the other hand New York courts
take a position squarely contrary,[4] and so in Colorado.[5] The
constitutional justification of these decisions must probably be
that the health not only of the women themselves, but of the general
public, or at least of posterity, is concerned, for, as we shall find
more particularly when we discuss general legislation on the police
power, to justify an interference with personal liberty of freemen
there must, under English ideas, be a motive based upon the health,
safety, and well-being of all of the whole community, not merely
of the particular citizen concerned. He has the right to work in
unhealthy trades at unhealthy times, or under unhealthy conditions,
just as he has the right to consume unhealthy food and drink. If it be
prohibited, it must be prohibited when it has a direct relation to the
general welfare. For example, a railway engineer may be prohibited
from working continuously for more than sixteen hours, for that is
a direct danger to the safety of the public; but a man may not
be prohibited from taking service for long hours as stoker on a
steamship, although the life of a stoker be a short one and not over
merry. Apparently, however, a woman can be; and indeed there have for
Public-domain text, read in full here on John Shaqi.
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