This review of a recent book on the longstanding battle for women's rights under law in the US from NY Times Supreme Court beat reporter Linda Greenhouse is a wonderful review of the rise and fall of feminism as a bipartisan issue within the duopoly we call the Democratic and Republican Parties. The opening about George Wallace's turnabout on the Equal Rights Amendment was deeply fascinating.
However, one early phrasing in the review struck a discordant note with me (and I must add here I am a proud owner and reader of the Mansbridge book prominently and favorably discussed within the review of the recent book). Greenhouse writes:
In fact, the Republican platform had supported the Equal Rights Amendment as far back as 1940; opposition had come mainly from pro-labor Democrats, who feared that equal treatment for men and women would mean an end to legislation that protected women from dangerous jobs. Labor opposition waned as the increasingly active feminist movement—frustrated that the Supreme Court had never interpreted the Fourteenth Amendment’s equal protection guarantee to apply to discrimination on the basis of sex—made passing the Equal Rights Amendment a top priority.
With that phrasing, Greenhouse leaves her early 21st Century readers, who are without an understanding of American labor history, thinking labor leaders opposed women's legal rights overall based upon a mere concern for women in "dangerous jobs." Worse, the use of the phrase, "pro-labor Democrats," is an anachronism because on labor issues, the Republican Party had, at the time, as many if not more stalwarts for labor--owing to the founders of the party including Abraham Lincoln being much more pro-labor in the first place. And yes, there were "conservatives," in both the Democratic and Republican Parties, who sometimes supported voting rights for women. However, too many were taking seriously the sarcasm of their French contemporary Anatole France, who was fond of, again, sarcastically saying: "The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."
I get libertarian law professor David Bernstein's point that Justice George Sutherland at the time was an ardent supporter of the 19th Amendment that finally enshrined the right of women to vote. However, Sutherland was a more complicated person overall, having originally endorsed the Food & Drug Administration Act while in Congress before becoming a Justice of the Supreme Court, and only later falling into a right-wing conservative fetish for "the freedom of contract" that so often undermined progressive legislation in State legislatures and Congress for decades between 1870 and 1935. The coalition on the Supreme Court which supposedly endorsed "women's equal rights under the law" included the odious Justice James McReynolds, who joined Sutherland in the infamous Adkins decision in the early 1920s that overturned a law protecting women and children with respect to a minimum wage law. As the Wiki entry on McReynolds quotes an able biographer of Oliver Wendell Holmes, Liva Baker, McReynolds was such a dis-respecter of women in the workplace that when a woman lawyer appeared in the room, he either said something disdainful or sometimes left the room when she rose to speak.
The fight for progressive legislation during the time of the tyranny of "freedom of contract," where Gilded Age Supreme Court Justices grafted corporate capitalist principles into the Constitution, was to seek compromises whereby rights in the workplace were extended to women and children. Feminists of the time, including Florence Kelley, pushed for these laws as part of a larger agenda to extend workplace rights for all. It is not as if pro-labor leaders in either major party at the time opposed women's rights in the workplace or at the ballot box. They were fighting a larger battle and some initially believed the ERA may be a step backwards in that battle. However, once the Fair Labor Standards Act of 1938 was passed, one saw labor leaders, already moving away from the Republican Party to join the FDR Democrats, much more consistently and broadly support women's rights including the Equal Rights Amendment.
In this context, it is important to recall that Mother Jones, the famous (and often infamous) woman labor agitator and leader, was neutral at best and often against what became the 19th Amendment because she saw the issue of women having the right to vote as a diversion from the larger battles affecting women in the labor market. It is a view I hope I would not have shared as it represents a refusal to chew gum and walk down the street. It is why I generally support the "Black Lives Matter" movement, for example, and have long opposed the draconian so-called war on drugs and the punitive nature of our penal laws over the past forty years especially. But Greenhouse's presentist, historically ahistorical phrasing, if applied to Mother Jones, would turn her into an antifeminist. We need to ensure, when reviewing history, to see things how people then saw them, and to look at their historical perspectives in guiding us toward that understanding.
And, again, for Greenhouse to write about "pro-labor Democrats" also mistakenly reenforces a presentist view of the past as many labor leaders of the time were steadfast Republicans and Republican Party membership in the House and Senate, including stalwarts such as the LaFollettes, father and son, were Republicans as much as Democrats. The Democrats had made important inroads into labor support with the Bryan candidacies starting in 1896 and with Wilson's attempts to effectuate pro-labor legislation in the 1913-1916 period (and admirably Wilson was an ardent supporter of the right of women to vote). But the floodgates of labor support in the Democratic Party did not occur until the FDR era,* and even Republican labor leader John L. Lewis of the nascent Congress of Industrial Organizations (CIO) had to recognize that by the late 1940s.
In short, now armed with this context, Greenhouse could merely have written, "Some pro-labor leaders and pro-labor government officials, in both the Democratic and Republican Parties, feared enshrining equal rights for women without exception into the Constitution would have hurt the cause of protecting women and men in securing rights in the workplace, due to the strong anti-labor sentiment at the Supreme Court and other institutions existing at the time in the nation."
In saying all this, I wish to add one final personal note: Linda Greenhouse remains perhaps my favorite New York Times reporter over the past 20 years. Unlike so many of her colleagues (cough, cough, Bruni, Friedman, Haberman, Seeyle, Dowd, cough, cough), she has a much more wide perspective beyond the cocktail circuit, which is surprising considering the elite nature of her "beat." She also is interested in historical perspectives befitting a legal scholar. It is why I was so surprised at that, again, discordant note in her otherwise excellent review. I remain vigilant against efforts, starting with the otherwise scholarly legal professor, David Bernstein, to unduly highlight labor officials and labor-supporting labor union supporters as too often inherently racist and sexist with a goal of dismissing labor unions in general--because what we rightly recognize now as sexist and racist was unfortunately broadly prevalent and crossed almost all political lines. Greenhouse's phrasing played into that often libertarian philosophy agenda, and therefore it required this exegesis.
* The Democratic Party finally endorsed the Equal Rights Amendment in its party platform in 1944, which is fairly consistent with this point of how and why the Democratic Party became more pro-labor overall and then open to supporting a broad endorsement of women's equality with men under the law.
