In 1920, a beginning toward compulsory old age insurance was made, when a Federal law provided for compulsory old age insurance for the civil service employees of the Federal government. The question of compulsory old age insurance is also being agitated in a number of states.
213. SHOULD SOCIAL INSURANCE EXTEND TO UNEMPLOYMENT?—It is contended by many that to insure workmen against the loss of their jobs would encourage shiftlessness, and that for this reason the principle of social insurance ought not to apply to unemployment.
It is obvious that a considerable share of unemployment is traceable to personal negligence, and it is probably true that insurance against unemployment would discourage thrift and foresight on the part of many workmen. On the other hand, it has been shown statistically that a large share of unemployment is due to crop failures, market fluctuations, and other conditions beyond the control of the workmen. In so far as this is true, there would be a great deal of unemployment whether it were insured against or not. Because, therefore, some unemployment is inevitable, and because unemployment is in many cases beyond the control of the individual, it becomes necessary, or at least desirable, for the state to insure workmen against this unavoidable risk.
Insurance against unemployment has never been tried out in this country, but it is likely that we shall some day follow the example of the leading European countries, and include this type of protection in our general program of social insurance.
214. OBSTACLES TO LABOR LEGISLATION.—Labor legislation of the type discussed in this chapter is making rapid headway in the United States. Nevertheless, it should be noted that in this field we are behind the more advanced countries of western Europe. The chief explanation of this relative backwardness is that the extension of labor legislation in this country has met with considerable opposition. The reasons for this opposition may be summed up as follows:
First, the spirit of individualism is so strong in this country as effectively to check legislation which appears paternalistic. The weak position of women and children in industry has somewhat lessened the force of this argument in the case of laws designed to safeguard these two groups, but labor legislation in behalf of men is still regarded suspiciously in many quarters.
Second, it is difficult to secure uniform laws among the several states. Labor legislation in this country has been primarily a state concern, but the attitude of the various states toward social insurance, the minimum wage, and other types of labor legislation, has been so divergent that the resulting laws have often been conflicting. In many cases states fear to enact laws which they believe will hamper local employers and encourage the migration of capital to states which are more lenient in this regard.
Third, an important obstacle to labor legislation in the United States has been the difficulty of enacting laws which the courts will not declare unconstitutional. The constitutional provision [Footnote: See the fifth amendment to the Federal Constitution, Appendix.] that no one shall be deprived of life, liberty, or property without due process of law has often been interpreted by the courts in such a way as to nullify laws designed to safeguard the interests of the working classes. For example, a law restricting the employment of women might be declared unconstitutional on the grounds that it interferes with the "liberty" of women to work as many hours, and for as small a wage, as they choose.
Within the last decade, however, the obstacle of constitutionality appears to have declined in importance. Our Supreme Courts often reverse their own decisions, as well as negative the decisions of the lower courts, and it is therefore difficult to ascertain what is truly the trend of judicial decision. Nevertheless, many authorities believe that we are on the verge of an era in which the courts will weigh labor legislation primarily in the light of its social benefit, and only secondarily with respect to how it squares with the technicalities of the Constitution.