Chains of Protection: The Judicial Response to Women's Labor Legislationby Judith A. Baer

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  • Chains of Protection: The Judicial Response to Women's Labor Legislation by Judith A. BaerReview by: Susan Estabrook KennedyThe American Historical Review, Vol. 84, No. 1 (Feb., 1979), pp. 266-267Published by: Oxford University Press on behalf of the American Historical AssociationStable URL: http://www.jstor.org/stable/1855873 .Accessed: 25/06/2014 03:00

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  • 266 Reviews of Books

    detail the presidential and congressional elections from I900 through I9I6, discusses the presidential politics of the Roosevelt, Taft, and first Wilson administrations, and puts in the framework of con- gressional maneuvering those elements of the legis- lative programs that relate to federal government regulation.

    Although Gould's evaluations of the three presi- dents are balanced, that of Wilson is less per- suasive than the other two. He credits Wilson in one paragraph with a mind that was "flexible, adroit, and opportunistic"; then in the next para- graph the author provides him "a tendency toward rigid opinions and intolerance of opposition" (p. 136). He concludes also that Wilson used the Dem- ocratic Party for his own purposes (for which the evidence is no greater than for any other aspiring politician) and that Wilson strengthened the party "for a season" and "left it weaker . .. than when he first became its leader" (p. 137). Although such a conclusion is defensible, it does not acknowledge the unprecedented diplomatic and political situa- tions faced by Wilson in the closing years of his presidency, nor does it sufficiently incorporate data, which Gould appropriately mentions, sug- gesting Wilson's health as an explanatory factor.

    Gould writes with authority and detachment. He has an intimate knowledge of the relevant man- uscript collections, and his bibliography and foot- notes indicate a mastery of recent scholarship. He consciously refrains from making his study one of good against evil and generally discusses rather narrowly the issue at hand, allowing his analysis to speak for itself without referring to the inter- pretations of others. For the particular subject of government regulation, such an approach has its drawsbacks. To understand the development of government regulation, for example, more needs to be said about the evolving structure of industry and about the considerable theorizing in the con- temporary professional and popular literature about "the new competition" and about the proper role of government. Although it appears by implication, moreover, that Gould does not fully accept the interpretations of historians such as Gabriel Kolko, who have established distinctive and influential positions on government regula- tion, Gould's readers might wish to see these inter- pretations confronted specifically.

    Such omissions were, no doubt, required by lim- itations of space imposed by editor and publisher. To require an author to tell such a story in fewer than two hundred pages poses an impossible chal- lenge of synthesis and condensation. In general, Gould meets this challenge skillfully and has made a particular contribution in his description of the political structure of the early twentieth century, in his analyses of the two political parties, and in his explanation of the origins of the Progressive

    Party in 1912. It is indeed refreshing for a book to deal authoritatively with parties and elections and admit the premise of the "enduring importance of political events" (p. vii).

    RICHARD L. WATSON, JR.

    Duke University

    JUDITH A. BAER. Chains of Protection: The 3udicial Response to Women's Labor Legislation. (Contribu- tions in Women's Studies, number i.) Westport, Conn.: Greenwood Press. 1978. Pp. X, 238. $I6.95.

    Applying scholarship to the battle against what she calls "the universality and injustice of male supremacy" (p. ix), Judith A. Baer has produced a well-researched, closely argued, and interestingly written study of the laws and judicial decisions relating to protection of women workers in twenti- eth-century America. A femininist and specialist in public law, Baer attempts to combine the exam- ination of the rise and fall of constitutional legi- timacy for protective legislation with an analysis of the morality and justice of differential treatment of the sexes.

    Chains of Protection traces several phases of pro- tectionism in the legislatures and the courts. Until I908, laws restricting employment of females were usually rejected under the doctrine of freedom of contract. With Muller v. Oregon, however, sociolog- ical data and the Brandeis brief convinced jurists that women needed protection. But Baer argues that early decisions were based on the assumption of permanent sexual differences among workers sufficient to justify special treatment for women, whose biological ability to bear children destined them for a social obligation as childrearers and homemakers. Protection had expanded to general labor regulation and other kinds of special laws for women workers until, in 1937, the minimum wage for women was upheld in West Coast Hotel v. Par- rish. The presumption of inequality, rather than changes in socioeconomic and technological condi- tions, had become the basis for decisions. By the I960s laws initially propounded as limitations on employers for the benefit of women workers had become restrictions on employed females. More recently, the impact of the Equal Pay Act of I963 and Title VII of the Civil Rights Act of I964 has led to reconsideration of protective legislation, most dramatically in the invalidation of every sex-spe- cific state labor law challenged since I969.

    Despite potential dangers of projecting contem- porary feminism backward over the historical rec- ord, Baer's treatment of the laws and cases fre- quently sets them in the social, political, and economic context of their own times and effectively illustrates shifting conditions of judicial inter- pretation. Some readers may also wish for a fuller

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  • United States 267

    treatment of the changing conditions of labor and of working women, but the problem of working- class women as objects rather than subjects of their own history is more difficult. One looks in vain for their views on the conditions that led to protective legislation and their attitudes toward the laws and court cases. But perhaps Baer should not be faulted for failing to write a book she did not intend to write. Since working-class women have often ignored or. rejected feminist positions, the book may be better conceived as a moral feminist look at abstract laws. For that purpose, the con- cluding two chapters contain a fine summation of the better-reasoned arguments on equality and justice, concentrating on the biological, psycholog- ical, and philosophical rather than the political and economic.

    Historians and political scientists will find Chain^ of Protection both challenging and enlightening. Feminists will welcome the hard evidence it adds to years of impassioned rhetoric.

    SUSAN ESTABROOK KENNEDY

    Virginia Commonwealth University

    JOHN W. BRIGGS. An Italian Passage: Immigrants to Three American Cities, I890-I930. New Haven: Yale University Press. 1978. Pp. XXii, 348. $20.00.

    The proliferating studies in American ethnic- his- tory are due to a complex constellation of factors. There is little doubt that they are the result of the social tumult of the I96os and the egalitarianism in which ethnicity and new ideological protestations were inextricably intertwined. The new ethnic studies also attest to the rewarding areas for inves- tigation that were long neglected by the American academic community. John W. Briggs's volume derives, with virtually no change, from his doctoral dissertation, and both its conclusions and its per- spective will provoke controversy.

    The title of Briggs's book is misleading; the title of the original dissertation is more descriptive: "Italians in Italy and America: A Study of Change within Continuity for Immigrants to Three Ameri- can Cities, 1890-1930. " The cities are Rochester and Utica, New York and Kansas City, Missouri. Observing that "scholars have subjected the large settlements [of Italians] in New York City and Chicago to considerable study," Briggs notes that these cities "represent one tradition of Italian set- tlement," but, in his opinion, there is another pat- tern. "Many Italians passed up the major metrop- olises to settle in medium-sized and smaller cities and towns. Here the colonies grew to their fullest expression in the years I890-1930. This book ex- plores this less-well-covered segment of the immi- grant experience" (p. xv).

    The hypotheses advanced are flawed: the mean-

    ing of the phrase "grew to their fullest expression" is conjectural; the generalization that this aspect of Italian immigration is "less-well-covered" is pat- ently not true: C. W. Churchill studied Italians in Newark; V. Y. McLaughlin, in Buffalo, G. La Piana, in Milwaukee, J. A. Scarpaci, in the Louisi- ana sugar parishes, and Radin, in San Francisco. There are scores of studies on other medium-sized cities and small towns (see F. Cordasco, Italian Americans: A Guide to Information Sources [I978]).

    Almost a third of Briggs's study is devoted to Old World backgrounds: emigration from south- ern Italy, mutual benefit societies in southern Italy, and schooling in southern Italy. If one is delighted to find Briggs rejecting Edward C. Ban- field's views, it is incongruously banal for him to repudiate Banfield as an immigration historian (which he is not) and to overlook Banfield's theory of "amoral familism," a necessary key to under- standing the social ethos of southern Italian society. Briggs's gratuitous attack on Phyllis Wil- liams and Leonard Covello as unknowledgeable about the premigration culture is undeserved. Wil- liams was intimately familiar with the invaluable work of the Sicilian physician-anthropologist, Giu- seppe Pitre, and Covello's Social Background of the Italo-American School Child (I944) was based on long sojourns and study in southern Italy. Briggs's "Bibliographical Note" reveals, at best, an in- adequate knowledge of Italian archives, in- judiciously used, and, at worst, little or no knowl- edge of Italian.

    Briggs's conclusions about Italian immigrants and their progeny in three cities derive from his view on Italian emigration (his reason for studying Old World backgrounds): the view will not with- stand scrutiny. In Briggs's own words: "Italian emigration was a selective process initiated as part of a reaction to the threat of a reduction of a complex status system into one based on simple exchange values associated with the wage-labor system. The emigrants give testimony through their mobility to a deep concern for their future places in society rather than to their immediate poverty. In Italy they had already expressed through their societies and associations burgeois values such as individual advancement through hard work, thrift, education, acquisition of prop- erty, and autonomy in their occupational and eco- nomic lives" (p. 272). This may reflect the views of Timothy L. Smith (Briggs's doctoral advisor) but is totally out of keeping with the data available in the work of both American and Italian scholars (for example, Robert F. Foerster, The Italian Emi- gration of Our Times [ I 9 I 9] and Fernando Manzotti, La Polemica sull'Emigrazione nell'Italia Unita [ I 969] ).

    Clearly, then, Italian immigrants did well in Briggs 's American cities. They were "active agents, capable of initiative as well as of accommo-

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    Article Contentsp. 266p. 267

    Issue Table of ContentsThe American Historical Review, Vol. 84, No. 1 (Feb., 1979), pp. i-xii+1-315+1(a)-58(a)Front Matter [pp. i-xi]The Renaissance and the Drama of Western History [pp. 1-15]Images of Power: Art and Pageantry in Renaissance Venice [pp. 16-52]Guild Republicanism in Trecento Florence: The Successes and Ultimate Failure of Corporate Politics [pp. 53-71]Humanists, Scientists, and Pliny: Changing Approaches to a Classical Author [pp. 72-85]Machiavelli, Guicciardini, and the Tradition of Vernacular Historiography in Florence [pp. 86-105]Reviews of BooksGeneralReview: untitled [p. 106]Review: untitled [pp. 107-108]Review: untitled [pp. 108-109]Review: untitled [pp. 109-110]Review: untitled [pp. 110-111]Review: untitled [pp. 111-112]Review: untitled [p. 112]Review: untitled [pp. 112-113]Review: untitled [pp. 113-114]Review: untitled [pp. 114-115]Review: untitled [pp. 115-116]Review: untitled [pp. 116-117]Review: untitled [pp. 117-118]Review: untitled [p. 118]Review: untitled [pp. 118-119]Review: untitled [pp. 119-120]Review: untitled [p. 120]Review: untitled [pp. 120-121]Review: untitled [pp. 121-122]Review: untitled [pp. 122-123]Review: untitled [pp. 123-124]Review: untitled [p. 124]Review: untitled [pp. 124-125]

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    Festschriften and Miscellanies [pp. 295-296]Other Books Received [pp. 297-303]Communications [pp. 304-315]Back Matter [pp. 1(a)-58(a)]

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