Lochner‘s Feminist Legacy

Professor Julie Novkov’s Constituting Workers, Protecting Women examines the so-called Lochner era of American constitutional jurisprudence through the lens of the struggle over the constitutionality of “protective” labor legislation, such as maximum hours and minimum wage laws. Many of these laws applied only to women, and Novkov argues that the debate over the constitutionality of protective laws for women – laws that some women’s rights advocates saw as discriminatory legislation against women – ultimately had more important implications for the constitutionality of protective labor legislation more generally. Liberally defined, the Lochner era lasted from the Slaughter-House Cases in 1873 – in which four Supreme Court Justices advocated strong constitutional protection for occupational liberty – through the triumph of the New Deal in the late 1930s. In preparing her book, Novkov apparently unearthed and read every reported federal and state case on protective labor legislation during the relevant time period. Having tabulated these cases, Novkov finds that both federal and state courts were much more likely to uphold women’s protective legislation than to uphold general protective labor legislation. In fact, decisions affirming the constitutionality of women’s protective legislation often paved the way for later sex-neutral legislation.