
On April 9, 1917, the Supreme Court upheld Oregon’s new 10 hour day law for both men and women that also provided for overtime pay. The Court went away from its usual position as hard-core defenders of contract doctrine, deciding the limited nature of the law meant that the state did not expand its police powers too much and workers could still be exploited if they wanted. This was an important precedent, although it did not mean the Court was moving toward a more liberal position on workers’ rights.
Oregon had led the way on workers’ rights for some time by the 1910s. The Supreme Court was generally hostile to these laws. This was very much the Lochner era. In 1905, the Court had ruled in Lochner v. New York that a law regulating the hours for bakeries was unconstitutional. But it made an exception to this state in 1908. In Muller v. Oregon, the Court ruled that a law specifically in favor of women’s hours was constitutional because women played a special role in the body politic as mothers. This was seen by a certain class of feminist as discriminatory, but labor feminists lauded the decision, understanding that this was not only protecting women from exploitation but opening the door for further advancement in laws limiting working hours.
In 1913, Oregon passed a new law that created a 10-hour day for both men and women. It applied broadly to mills, factories, and manufacturing facilities. But it also included a pioneering time and a half law for overtime, up to 3 hours a day. This was critical, as it turns out, because it kept open the option of workers laboring more, which was a good way to get around the general atmosphere of the era that regulating the workplace was a constitutional violation.
Franklin Bunting ran a flour mill in Lake County, presumably Lakeview since the rest of that county is mountains and scrubland. He hated every part of this new law. So he just refused to comply and sued the state when it fined him $50 for violating it. The state supreme court upheld the law in 1915. Bunting appealed to the Supreme Court. There were a lot of folks invested in Oregon being able to pass such a law. Among them was Felix Frankfurter, the future Supreme Court justice who would lead the state’s appeal. But Bunting had his major supporters too, including former senator Charles Fulton, a classic Gilded Age Republican who had served a term from the state from 1903-09.
This case was all about contract doctrine. This is the critical labor issue of the era for the courts. In short, going back to the 1830s and then especially after the Civil War, employment was seen as a contract between two willing individuals. So what right did the courts or the state have in adjudicating decisions made by two equal parties? Of course the idea of two equal parties when it came to employment was completely ridiculous and even more so after the Civil War. To say that the millionaire and the starving immigrant were equal parties in a contract of choice is not just to ignore the reality of power dynamics, but to laugh in the face of common sense. And yet, the more unequal the nation became, the more the courts and other hacks for the millionaire elites clung to this idea like it came down on high from God. This all got in the way of all sorts of ways to make work slightly less equal? Workplace safety law? Violation of a worker’s right to labor for higher wages in an unsafe working environment if they wanted. Minimum wage law? Violation of a workers’ right to choose to sell their labor for less money. Child labor laws? Violation of a parent’s right to sell their children’s labor. Etc.
Added to this was the perversion of the Fourteenth Amendment. The same courts who decided cases such as Plessy v. Ferguson or throwing out the Civil Rights Act of 1875 as unconstitutional–i.e., deciding that the 14th Amendment did not actually protect black Americans–decided that in fact that 14th Amendment did protect corporations. They basically wrote this contract ideology into the 14th Amendment. It’s true enough that Reconstruction Era Republicans did have contracts in mind with the 14th Amendment. These people loved contracts and believed the best way to solve the southern labor issue was for ex-slaves to sign contracts with planters that would regulate wages and conditions. And let’s not pretend that most of these guys were pro-labor either, they weren’t. But at the time of writing the 14th Amendment, their vision was very much not providing cover for corporations to ensure that they could exploit their workers and that any laws to protect workers would be ruled unconstitutional on these grounds. But then we should know by now that the courts are filled with hacks who just rewrite the language of the law to support their personal political preferences, with a few exceptions around ideas of principle, sometimes.
The specific argument Bunting and his lawyers made was that the law intervened in the labor market to compel employers to pay more for labor than market value and thus was a wage law rather than an hours law. Oregon countered that it was strictly an hours law and that the very mild penalties on the employer also demonstrated its limited police power. What both sides understood is that an actual law regulating wages would be tossed by the courts in this era.
To some surprise, the Court ruled 5-3 in favor of the state. Louis Brandeis sat out, which is interesting since he was the lawyer whose pioneering use of sociological evidence is what swayed the Court in Muller. Perhaps this is why he sat it out. In any case, Joseph McKenna wrote the majority opinion, with Holmes, Day, Pitney and Clarke joining. White, Van Devanter, and McReynolds each wrote separate dissents. McKenna argued that the state had engaged in appropriate police powers. The key here is that the law did nothing to set wages, outside of the overtime. McKenna noted this specifically. Because this law was just about hours and not wages, it did not discriminate against employers and the contract law could be upheld. Bunting’s lawyers also argued that the law did not even protect the workers from unsafe conditions, which McKenna rejected outright.
This was a positive step for labor reformers. Alas, the Court would continue to rule for employers on most cases for another twenty years and the throwing out of the Washington D.C. minimum wage law for women in Adkins v. Children’s Hospital in 1923 demonstrated that only a revolution on the Court would lead to a scenario in which the law could protect American workers. That happened under Franklin Delano Roosevelt, leading to the Fair Labor Standards Act in 1938 and it being upheld in U.S. v. Darby in 1941.
This is the 597th post in this series. Previous posts are archived here.
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