The absence of an emergency clause may expose the law to the charge of creating unnecessary hardships and thereby creating an unreasonable interference with liberty. If however in this as in other matters perfect justice and adaptation of means to the end might be thought to require a more minute differentiation than our statutes provide, it should be borne in mind that one very legitimate element in considering the reasonableness of a statute is the possibility or facility of its administration. A certain degree of mechanical uniformity of rules is essential to the successful operation of any act. Experience has demonstrated that it is extremely difficult to control compliance with legal limitations of hours of labor, if the permitted number of hours may be arranged at any time within a range of fourteen or fifteen hours, or if the employer is permitted to employ two shifts of working women, or if he is allowed to distribute 54 or 60 hours through the week as he pleases. On the other hand Dr. Jacobi quotes the labor commissioner of New York as saying: “Except for the administrative reason that it makes it easier to enforce the prohibition against overtime, there is no present necessity in this state for the prohibition of night work by adult women. On the other hand, if enforced, it would deprive some mature working women, employed by night only at skilled trades, for short hours and for high wages, of all means of support. And the prohibition, in its application to factories only, seems rather one-sided when we consider that probably the hardest occupations of women, those of hotel laundresses and cleaners, are not limited as to hours in any way.”[69] The relevancy of administrative considerations has received very little judicial discussion in connection with the problem of discrimination, and deserves serious consideration. While important rights should not be allowed to be sacrificed to mere official convenience, effectiveness and even the cost of administrative supervision should be regarded as legitimate factors in determining the reasonableness of restrictive measures.
The whole problem of discrimination depends so much upon the varying conditions of different industries that an intelligent judgment of what is legitimate and what is arbitrary is possible only upon the basis of a close study of facts. There ought to be some guaranty that legislation in this respect shall proceed upon a careful and impartial survey of all relevant conditions, and in the notorious absence of such guaranties, the courts may well demand to be convinced that discriminations are not arbitrary, and that the denial of exemptions is necessary from an administrative point of view. It is a further question whether it is possible for the legislature to do full justice to the varying needs of industries by making direct provision for all cases, or whether powers of dispensation or permit must not be vested in administrative authorities. Such powers should not go beyond the province of what constitutes, properly speaking, administration. As soon as they assume the character of subsidiary regulations, there arises a constitutional difficulty in the principle that legislative powers must not be delegated. A statute of California which left it to the judgment of the labor commissioner to determine whether the inhalation of noxious gases could be prevented by the use of some mechanical contrivance, and if so, to direct its installation, was on that ground declared unconstitutional.[70] There are also, however, decisions sustaining the delegation to administrative authorities of the power to specify standards in pursuance of a general policy indicated by the legislature.[71] At present it is not clear to what extent the delegation of powers of regulation can be safely carried, nor is it probably in accordance with prevailing sentiment that it should extend to provisions that can be dealt with intelligently and effectually by legislation.
IV
Attention has been called to the conflicting views of the courts of New York and Illinois, and the federal Supreme Court, with reference to the constitutional rights of women. Similar differences may appear with regard to drawing the line between legitimate and arbitrary discrimination. It is important to observe that the more liberal view in favor of the legislative power held by the Supreme Court of the United States is not binding on the states. It is different where the state courts take the more liberal view. When the Supreme Court decided that a ten-hour law for bakers violated the fourteenth amendment, the New York law fell, and similar legislation in all other states was invalidated or made impossible. If the Supreme Court should decide, as it probably would, that the prohibition of night work of women does not violate the fourteenth amendment, the court of appeals of New York, while it might revise and overrule its own decision to the effect that such prohibition is invalid, would not be bound to do so, but would have the right to insist that the constitution of New York protects individual right against legislative power more effectually than does the federal constitution. And so it is well understood that the supreme court of Illinois, in passing upon the validity of the ten-hour law of that state, copied from the law of Oregon which the Supreme Court of the United States sustained, is not bound, though it may be properly influenced, by that decision; the federal authority is persuasive, but not controlling. This results from the fact that the fourteenth amendment was enacted as a protection against the abuse of legislative power, and is not concerned with legislative inaction or impotence, induced by the construction which the state courts put upon the state constitution.
In such cases the people of the state have it in their hands to remove the opposition of their judiciary, by amending their state constitution so as to permit the desired legislation. This was done in New York with reference to legislative control of labor performed in connection with state and municipal works, and in Colorado, with regard to hours of labor in specified occupations and other branches of industry which the legislature might deem injurious to health. So the new constitution of Michigan provides (art. V, § 29) that the legislature shall have power to enact laws relative to the hours and conditions under which women and children may be employed. If such constitutional amendment is adequately framed and the new legislation conforms to its provisions—in Colorado the supreme court held that an eight-hour law for women enacted after the amendment fell short of satisfying the requirements of the amended constitution[72]—there is nothing but the federal constitution that can be superior to the new law. If the federal Supreme Court has held that such a law does not violate the federal constitution, the construction must be binding upon the state court. True, if the state court should presume to place upon the federal constitution a construction more unfavorable to legislative power than the federal Supreme Court, there would be no possibility, under the federal statutes, of reviewing or reversing that decision, but it is almost inconceivable that a state supreme court should take such a position and override the most authentic and authoritative interpretation of the highest law of the land, provided by that law. As a matter of fact, such a course has never been taken, and need not be apprehended.
It is one of the dominant features of our constitutional system that the nation, except for the regulation of interstate and foreign commerce, has debarred itself from the active and positive care of social and economic interests. The other great federated commonwealths of the world have more liberal provisions in this respect. Germany has assigned to the imperial power the whole subject of trade and industry; the Swiss constitution of 1874 mentions as subjects of federal legislation hours of labor and the care of health in factories; in Canada the Dominion is given residuary powers which cover the bulk of industrial legislation, and Australia by a wise provision allows any two or more of the states to refer to the federal parliament any matters to be regulated for the referring states jointly. The United States has by its constitution undertaken to safeguard individual right as an immunity from governmental oppression, but not as an immunity from private exploitation which falls short of reduction to practical servitude. Congress cannot enact protective measures for women in industry applicable to the nation at large. Its position is in this respect the same as with regard to child labor. It has been suggested that the United States might and should debar products manufactured by child labor from interstate or foreign commerce, and if this were practicable, women’s work might be controlled in the same way. Such a legislative contrivance would violate the spirit, if not the letter, of the constitution, and on that account would meet with strong and legitimate opposition.
It is undoubtedly an anomaly, that our arbitrary and artificial state lines should stand in the way of such uniformity of industrial control as competitive industrial conditions may demand. A certain measure of unity may perhaps be achieved by the hitherto untried method of legislative agreements between several states, subject to the consent of Congress. But under the limitations of state constitutions, such unity would be a precarious thing, and its possibility has hardly been discussed.
Considering the action taken by the International Conference on Labor Regulation at Berne in 1906 in regard to the night work of women, the question suggests itself whether the treaty-making power might not be used for the purpose of securing national protection of women in industry. The Berne convention provides that the industrial work of women at night shall be prohibited, with a specification of the number of hours, and subject to certain exceptions particularly set forth. Suppose the United States had been a party to this convention, what would have been the effect? Under the federal constitution, the treaties are the highest law of the land, and treaties of the United States sometimes deal with subjects otherwise withdrawn from federal jurisdiction and belonging to the states, so especially with the right of aliens to hold land. But these treaty provisions are directly operative without further legislation. This does not appear to be true of the Berne Convention. For although the convention regarding night-work uses the word “shall be prohibited” (sera interdit) while the phosphorus convention says the parties “bind themselves to prohibit” (s’engagent à interdire), yet even the night-work convention leaves it to the signatory states to define what shall be regarded as industrial enterprises, and therefore is not operative without further legislation. For the United States the convention would therefore have been ineffective without the concurrent action of each state. Even however if a convention should create immediately operative restraints, they would probably be ineffective in practice without appropriate administrative arrangements, and these, under the constitution, can be provided only by the states. On the whole, the treaty-making power can hardly be relied upon to break down the barriers created by state autonomy.
Fortunately, however, the work of agitation and public education knows no state lines, and the national influences which are thus constantly operative cannot fail to produce a certain uniformity of legislation which will increase as the wisdom of restrictive or regulative measures approves itself by their success. In the work of public enlightenment, the federal government can and does bear its share, since the expenditure of national funds is not bound by the same limitations as the enactment of laws intended to bind private action, and since the constitution, through the provision for the census, lends a direct sanction to inquiries into social and economic conditions. For the present, these non-compulsory agencies must be relied upon as the main forces in the work of unification.