It is to be noted that the Supreme Court refuses to regard the non-possession of active political rights as a controlling element. Under a system which sets constitutional limitations against the popular will as expressed through the ordinary elective franchise, the treatment of the latter as relatively indifferent has a certain plausibility which would be much more doubtful in England or Germany. If the vote cannot secure shorter hours, it may be argued that the absence of the vote cannot be a valid reason for allowing the exercise of the power. If, on the other hand, shorter hours are demanded in the interest of the public, the bestowal of the franchise should not forfeit the benefit of the measure.
From a practical point of view, however, political power is an important, if not in the long run decisive, factor in the economic struggle, and as long as it is withheld from women they have a claim to special protection from the state, which they may put forward as a requirement of justice, without conceding that their status is naturally one of dependence and inferiority.
There is another argument in favor of a larger state interference with the freedom of contract in the case of women than in that of men, which has received little attention, but seems to deserve consideration.
The whole doctrine of freedom of contract is based upon a theory of constitutional equality which is frequently belied by the facts. What saves the theory from being altogether a fiction, is the possibility of contracting on something like equal terms through the power of collective bargaining. The doctrine of freedom of contract stands and falls with the efficacy of the organization of labor. If for any reason, such organization is impossible or ineffective, the right of the state to exert its power in favor of tolerable economic conditions cannot in reason be disputed, even though considerations of expediency or wisdom may make its exercise undesirable.
In the past, women workers have been greatly inferior to men in the power of effective organization. It remains to be seen whether this inferiority will be permanent. Considering the fact that most women enter industrial work as a temporary occupation which they expect to give up for matrimony, and that the care of the household and family is still regarded as their normal and proper function, it is not surprising that there should be much less opportunity and inducement for organization among women than among men. And if this should prove to be a necessary limitation, it would constitute a justification for the exercise of state control, which in the case of men may be found to be absent or to be confined to particular employments.
When we examine the labor laws of Massachusetts and other states, in which women are so commonly classed with young persons we might be tempted to conclude, that as on the one hand the state claims absolute control over children, and on the other hand is careful to respect the constitutional rights of adult men, there is manifested a consciousness of a power, not absolute, but transcending the normal measure, equally exercisable over those beyond the age of childhood and below full maturity, and over women. Upon closer scrutiny it will however appear that there are extremely few cases in which special legislation for women is of a purely economic character. The provision of the Massachusetts law[63] forbidding deductions from the wages of women (and minors) in case of the breakdown of machinery if they are refused the privilege of leaving the mill while the damage is being repaired, is one of the rare instances in point. Generally the common protection accorded to women and young persons is quite capable of being explained upon the basis of physical differences between adult men and adult women, and it is not therefore necessary to have recourse to the greater justification of special economic protection. The case may be somewhat different in English and German legislation.
From a constitutional point of view it makes a considerable difference whether the exercise of special power over the individual is based upon his supposed dependency and inferiority of right, or is due to special conditions in no way derogatory to his civil status. It is one thing to quarantine a smallpox patient, another thing to detain an alien at an immigrant station. When measures shall be proposed for the control of women in industry upon a principle different from any applied to men, it will be time to inquire whether she is to be measured by different and inferior political standards. The laws that have been so far enacted for women involve, with rare exceptions, no such discrimination.
The specific evil effects of long hours of standing upon female organs have long been recognized; so there is assumed to be a difference in nervous structure, and a greater susceptibility, in consequence of this, to the exhaustion of prolonged work. The indirect danger of diminished strength and vitality of possible offspring involves a supreme interest of the community at large, for which there is no parallel in the case of men, and which must satisfy the demands of the strictest constitutional constructionist.
The prohibition of night work in factories has in the case of younger women, at least, the justification of moral protection;[64] and while, upon an assumed constitutional equality of both sexes, such total prohibition is less easily explained as regards women of mature age, it is probably possible to establish a case of social or physical desirability of the restriction in their favor.
It might be said that the prohibition of women’s work on specially dangerous machinery presents a case where the tutelary care of the state is simply pushed one step farther than in the case of men; but even here a specific danger is traceable; for it appears that the first provision of that kind in England was due to the suggestions of factory inspectors who pointed out to the parliamentary committee that the customary dress of girls and women made them especially liable to be caught by machinery.[65]