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Published online by Cambridge University Press: 09 January 2002
The history of the American welfare state is often recounted as a long line of missed opportunities. As the story goes, the absence of a labor party, or American exceptionalism, helped create a weak welfare state. Initially, some political scientists, labor economists, and historians attributed American exceptionalism to the pure and simple unionism of the American Federation of Labor (AFL). In the 1990s, however, a number of political scientists and legal historians revised their understanding of American exceptionalism. Given the legal bias within the common law that benefited individuals rather than groups, conservative state and federal court judges pursued peremptory legal strategies, like the labor injunction, that shaped the course of the American labor movement. It was repressive state action, the revisionists argue, that explains why organized labor, and the unions that came to dominate the movement, pursued a less expansive vision of trade unionism and the American state.
1. See Sombart, Werner, Why is There No Socialism in the United States? (1906, New York: M.E. Sharpe, 1976)CrossRefGoogle Scholar and Perlman, Selig A History of Trade Unionism in the United States (New York: Augustus M. Kelley, 1950)Google Scholar for the classic interpretation of American exceptionalism.
2. See Tomlins, Christopher L., The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880– 1960 (New York: Cambridge University Press, 1985)Google Scholar; Forbath, William E., Law and the Shaping of the American Labor Movement (Cambridge, MA: Harvard University Press, 1991)Google Scholar; Hattam, Victoria C., Labor Visions and State Power, the Origins of Business Unionism in the United States (Princeton: Princeton University Press, 1993)CrossRefGoogle Scholar; Ernst, Daniel R., Lawyers against Labor, From Individual Right to Corporate Liberalism (Urbana: University of Illinois, 1995)Google Scholar; and O’Brien, Ruth, Workers’ Paradox: The Republican Origins of the New Deal Labor Policy, 1886–1935 (Chapel Hill: University of North Carolina Press, 1998)Google Scholar for a range of arguments about how the courts curbed the role that organized labor played in the creation of the American state. Finally, Orren's, Karen Belated Feudalism: Labor, the Law, and Liberal Development in the United States (New York: Cambridge University Press, 1991)Google Scholar challenges the notion of “American exceptionalism.”
3. See MacKinnon, Catherine A., Toward a Feminist Theory of the State (Cambridge, MA: Harvard University Press, 1989)Google Scholar; West, Robin, Progressive Constitutionalism: Reconstructing the Fourteenth Amendment (Durham: Duke University Press, 1994)Google Scholar; and Bryson, Valerie, Feminist Debates: Issues of Theory and Political Practice (New York: New York University Press, 1999), chap. 5CrossRefGoogle Scholar. Also see Margaret Baldwin, “Public Women and the Feminist State,” Harvard Women’s Law Journal 20 (1997): 59–79 for a good overview of the different interpretations of the feminist state.
4. Feminist legal theorists examine the equal treatment and the special treatment perspectives in the equal protection clause of the Fourteenth Amendment. See Bartlett, Katherine T., “Gender Law,” Duke Journal of Gender Law & Policy 1 (1994): 1–8 Google Scholar; Kenney, Sally J., “Pregnancy Discrimination: Toward Substantive Equality,” Wisconsin's Women's Law Journal 10 (1995): 353–60Google Scholar; and Julie Nice, “Symposium: Discrimination and Inequality Emerging Issues Equal Protection's Antinomies and the Promise of a Co-Constitutive Approach,” Cornell Law Review 85 (2000): 1394–412 for thoughtful overviews of the difference between equal treatment and special treatment. Meanwhile, political theorists equate special treatment with a positive notion of liberty and equal treatment with a negative conception of liberty outlined by Isaiah Berlin. Negative liberty is characterized as the absence of external restraint. Equality under law, therefore, ensures that when a law is applied to similarly situated persons, it will produce equitable results. Negative freedom incorporates its own conception of sameness. For women, it means being the same as white men since the latter set the norm or standard. By contrast, positive liberty revolves around internal constraints that inhibit freedom such as addictions, fears, and compulsions. The state helps facilitate an individual to ensure that he or she has the will to be free. This involves a positive or substantive notion of justice. See Nancy J. Hirschmann, “Toward a Feminist Theory of Freedom,” Political Theory 24 (1996): 46–67 for a good description of the equal treatment and special treatment binary from a political science perspective.
5. See Hart, Vivien, Bound by Our Constitution: Women, Workers, and the Minimum Wage (Princeton: Princeton University Press, 1994), 10 CrossRefGoogle Scholar; and West, Progressive Constitutionalism. West is one of a growing number of feminist legal scholars and feminist theorists who have developed the notion of relational justice or an “ethic of care” to avoid the special treatment/equal treatment binary, which rests on a progressive interpretation of the American state. This approach has more in common with the special treatment perspective, which is based on a positive conception of liberty, than the equal treatment perspective, which relies on a negative notion of liberty. See Gilligan, Carol, In a Different Voice: Psychological Theory and Women's Development (Cambridge, MA: Harvard University Press, 1982)Google Scholar; MacKinnon, Toward a Feminist Theory of the State; Ruddick, Sara, Maternal Thinking: Toward a Politics of Peace (Boston: Beacon Press, 1989)Google Scholar; Tronto, Joan, Moral Boundaries: A Political Argument for an Ethic of Care (New York: Routledge Press, 1993)Google Scholar; and Fineman, Martha Albertson, “Cracking the Foundational Myths: Independence, Autonomy, and Self-Sufficiency,” Journal of Gender, Social Policy & the Law 8 (1999): 101–16Google Scholar.
6. See Hart, Bound by Our Constitution; and Suzanne B. Mettler, “Federalism, Gender, & the Fair Labor Standards Act of 1938,” Polity 26 (1994): 637. According to Mettler, “Though there is a good deal of overlap between Vivien Hart's approach to the FLSA and mine, she ultimately stresses the ‘straitjacket of constitutional definitions,’ while I treat institutional structures as animated by politics.” Also see Mettler, Suzanne B., Dividing Citizens: Gender and Federalism in New Deal Public Policy (Ithaca: Cornell University Press, 1998), 176–95Google Scholar.
7. Hart, Bound by Our Constitution, 180. Also see Linda C. McClain, “Symposium: Discrimination and Inequality Emerging Issues Toward a Formative Project of Securing Freedom and Equality,” Cornell Law Review 85 (2000): 1247–48.
8. Hart, Bound by Our Constitution, 10.
9. See Colin Gordon's important study, New Deals: Business, Labor, and Politics in America, 1920–1935 (New York: Cambridge University Press, 1994). This article primarily relies on his definition of regulatory unionism. Its normative aspect, however, stems from Hillman's vision of this type of unionism. See Fraser, Steven, Labor Will Rule: Sidney Hillman and the Rise of American Labor (New York: Free Press, 1991), 391–94Google Scholar.
10. According to Martin, approximately eleven million workers were covered under the FLSA in September of 1938. The next year, when minimum wage rose from $.25 to $.30 an hour, three million more workers were covered. See George Martin, Madam Secretary, Frances Perkins (Boston: Houghton Mifflin Co., 1976), 392. There is some dispute between Mettler and Hart about whether substantially fewer women then men received protection from the statute. See Mettler, Divided Citizens, 199; and Vivien Hart, “Minimum Wage Policy and Constitutional Inequality: The Paradox of the Fair Labor Standards Act of 1938,” Journal of Policy History 1 (1989): 337.
11. See Klare, Karl E. “Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937–1941,” Minnesota Law Review 62 (1978)Google Scholar: 265–339; Katherine Van Wezel Stone, “The Post-War Paradigm in American Labor Law,” Yale Law Review 90 (1981): 1509–80; Tomlins, The State and the Unions; and O’Brien, Workers’ Paradox.
12. See Gordon, New Deals, 87–104.
13. See James Gross, A., Broken Promise: The Subversion of U.S. Labor Relations Policy, 1947–1994 (Philadelphia: Temple University Press, 1995)Google Scholar.
14. See Jaffe, Louis L., “Invective and Investigation in Administrative Law,” Harvard Law Review 52 (1939): 1221 CrossRefGoogle Scholar.
15. Beginning in 1933, the American Bar Association (ABA) formed a Special Committee on Administrative Law that proposed that all “judicial functions of federal administrative tribunals should be divorced from their legislative and executive functions” (American Bar Association Report [1933] vol. 58. Pierce Butler, Jr., Melvyn G. Sperry, O.R. McGuire, Louis G. Caldwell, and Walter F. Dodd sat on this committee.
16. For the classic accounts of this theory, see Bernstein, Marver H., Regulating Business by Independent Commission (Princeton: Princeton University Press, 1955)CrossRefGoogle Scholar; and Stigler, George J. “The Theory of Economic Regulation,” Bell Journal of Economics and Management Science 2 (1971): 3–21 CrossRefGoogle Scholar.
17. See Plotke, David, “The Wagner Act Again: Politics and Labor, 1935–37,” Studies in American Political Development 3 (1989): 143 CrossRefGoogle Scholar. By 1947, they would increase seven times, with 14 million workers organized in unions. Nelson Lichtenstein, “From Corporatism to Collective Bargaining: Organized Labor and the Eclipse of Social Democracy In the Era, Postwar,” in The Rise and Fall of the New Deal Order, 1930–1980, eds. Fraser, Steven and Gerstle, Gary (Princeton: Princeton University Press, 1989), 123 Google Scholar.
18. Schechter Poultry Corp. v. U.S. 295 U.S. 495, (1935).
19. Calvert Magruder to Benjamin V. Cohen, Apr. 14, 1937, Benjamin V. Cohen Papers, Manuscript Division, Library of Congress, Washington, DC Magruder spoke of the “sweet reasonableness” of statutes the New Dealers wrote and “careful draftsmanship.”
20. Schlesinger, Arthur M., Jr. The Politics of Upheaval (Boston: Houghton Mifflin Co., 1960), 385–95Google Scholar. Also see extensive correspondence between Benjamin V. Cohen, Thomas G. Corcoran, and Felix Frankfurter in their respective sets of papers housed in the Manuscript Division, Library of Congress, Washington, DC.
21. Ten-page memorandum entitled “Statement,” Thomas G. Corcoran Papers, Manuscript Division, Library of Congress, Washington, DC.
22. Patterson, James T., Congressional Conservatism and the New Deal: The Growth of the Conservative Coalition in Congress, 1933–1939 (Lexington: University of Kentucky, 1967), 214 Google Scholar.
23. Schlesinger, The Politics of Upheaval, 442–43.
24. Cohen to Frankfurter, Jan. 8, 1932, Frankfurter Papers, Reel 79, Manuscript Division, Library of Congress, Washington, DC; Frankfurter to Miss Johnson, July 6, 1933, Frankfurter Papers, Reel 97. Cohen and Frankfurter preferred legislation that set a fair wage rather than merely minimum wages and maximum hours.
25. Memorandum entitled “After the Wagner Act,” Cohen Papers.
26. See Gillman, Howard, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham: Duke University Press, 1993)Google Scholar; and Ross, William G., A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890–1937 (Princeton: Princeton University Press, 1994), 41–42 Google Scholar.
27. Lochner v. New York, 198 U.S. 45 (1905).
28. Strum, Philippa, Brandeis: Beyond Progressivism (Lawrence: University of Kansas Press, 1993), 59–60 Google Scholar.
29. Bunting v. Oregon, 243 U.S. 426 (1917).
30. See Schlegel, John Henry, American Legal Realism and Empirical Social Science (Chapel Hill: University of North Carolina Press, 1995)Google Scholar; Kalman, Laura Legal Realism at Yale (Chapel Hill: University of North Carolina Press, 1986 Google Scholar); and Rumble, Wilfried E., American Legal Realism: Skepticism, Reform and the Judicial Process (Ithaca: Cornell University Press, 1968)Google Scholar. Legal realists, as well as the broader category of legal progressives, involved themselves in the study of law and its applications. They disliked formalism, deductions, and abstractions in classical legal orthodoxy.
31. Adkins v. Children's Hospital, 261 U.S. 525 (1923).
32. Hammer v. Dagenhart, 247 U.S. 251 (1918).
33. Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936).
34. “A Brief History of the New York Minimum Wage Case,” June 1936, Record Group 174, National Archives, Washington, DC.
35. Ibid.
36. Memorandum entitled “Notes,” Cohen Papers.
37. Hugo Black to E.W. Yarby, July 3, 1937, Hugo Black Papers, Manuscript Division, Library of Congress, Washington, D.C.; and Memorandum entitled “Wages and Hours—What is Practical Now,” June 17, 1936, Corcoran Papers.
38. Perkins to Gregory, July 10, 1936, Record Group 174, National Archives.
39. Ibid.
40. “Plan to Accomplish Fair Wage Agreements through Organization of Workers in Industry and Commerce under State Supervision,” Record Group 174, National Archives.
41. “Plan to Establish Minimum Fair Wages and Eliminate Use of Wage Cutting as a Basis for Competition in Industry and Commerce,” submitted by Henry Epstein, Solicitor General of New York State, June 16, 1936, Record Group 174, National Archives.
42. Charles O. Gregory to Frances Perkins, July 7, 1936, Record Group 174, National Archives.
43. Gregory to Perkins, July 6, 1936, Record Group 174, National Archives.
44. Gregory to Perkins, July 7, 1936, Record Group 174, National Archives.
45. West Coast Hotel v. Parrish, 300 U.S. 379 (1937), 391.
46. Irons, Peter, New Deal Lawyers (Princeton: Princeton University Press, 1982), 279 Google Scholar. Irons notes, “this was a disingenuous rationale, since no canon of construction prevented the Court from deciding a case on constitutional grounds not presented by counsel.”
47. Memorandum entitled “After the Wagner Act,” Cohen Papers.
48. Benjamin V. Cohen to Calvert Magruder, April 16, 1937, Cohen Papers.
49. Quoted from Martin, Madam Secretary, 390. The President’s office also compiled data on the public reaction to Roosevelt’s speech in editorials around the country. Katherine C. Blackburn to Thomas Corcoran, June 10, 1937, Corcoran Papers.
50. Memorandum entitled, “History of the Fair Labor Standards Act,” Frances Perkins Public Papers, Columbia University, New York, New York.
51. Sen. Hugo L. Black of Alabama introduced S. 2475 in the Senate; and Rep. William P. Connery of Massachusetts sponshorship H.R. 7200. According to Arthur Krock, Corcoran and Cohen also helped Jackson draft the legislation. Arthur Krock, “Travail of Writing Wages and Hours Bill,” New York Times, June 4, 1937. Perkins only advised Corcoran, Cohen, and Jackson's assistant Walter L. Pope after they had written the initial legislation. See New York Times, May 8, 1937; New York Times, May 17, 1937; and New York Times, June 5, 1937. The New York Times also wrote that “[f]ew of the thirty-five members of the Senate and House Labor Committees, it was apparent, possessed even a working familiarity with the bill” (New York Times, June 3, 1937).
52. Memorandum entitled “On the Constitutionality of the Proposed Black-Connery Fair Labor Standards Act,” Corcoran Papers.
53. Memorandum entitled “The Proposed Fair Standards Act of 1937,” Corcoran Papers.
54. Paul H. Douglas and Joseph Hackman, “The Fair Labor Standards Act of 1938, Part I,” Political Science Quarterly, 53 (1938): 497.
55. Stafford v. Wallace, 258 U.S. 495 (1922).
56. NLRB v. Jones & Laughlin Corp., 301 U.S. 1 (1937).
57. Whitfield v. Ohio, 297 U.S. 431 (1936); and Kentucky Whip & Collar Co. v. Illinois C.R.C., 299 U.S. 334 (1937).
58. See Houston E. & W. Texas Ry. Co. v. U.S. 234 U.S. 342 (1914) (known as the Shreveport case).
59. Memorandum entitled “Delegation of Power Under the Proposed Fair Labor Standards Act,” Robert H. Jackson Papers, Manuscript Division, Library of Congress, Washington, DC.
60. U.S. Congress, Joint Committee on Education and Labor, Hearings on S. 2475 and H.R. 7200, Fair Labor Standards Act, 75th Cong., 1st sess., 1937, 15.
61. “Explanation of Attached Bill,” Jackson Papers.
62. Ibid.
63. Memorandum entitled “The Proposed Fair Labor Standards Act of 1937,” Corcoran Papers.
64. Not all members of the Roosevelt administration thought a new quasi-judicial agency should be created. In particular, Secretary Perkins expressed difficulty supporting legislation that created yet another quasi-independent judicial agency. Clara M. Beyer, June 4, 1937, Record Group 174, National Archives; and New York Times, May 27, 1937. Clara M. Beyer wrote to Perkins that in reference to her upcoming testimony, It seems to me, and I believe you will agree, that the administration by a five-man board is one of the weakest features of the proposed bill. In this connection I believe it would be advisable not to suggest that this Labor Standards Board be in the Labor Department.
65. Memorandum entitled “History of the Fair Labor Standards Act,” Perkins Papers.
66. See Congressional Record, 75th Cong., 1st sess., 81, pt. 7 (1937): 7650–51. Also see Morton, Herbert C., Public Contracts and Private Wages: Experience under the Walsh-Healey Act, (Washington, DC.: Brookings Institution, 1965), 17–19 Google Scholar for an explanation of why the administration decided to adopt the prevailing wage standard and not the “living wage” standard which was regarded as more humanitarian.
67. Gerard D. Reilly to Perkins, May 13, 1937, Record Group 174, National Archives; and Memorandum entitled “Sectional Analysis of Fair Labor Standards Bill,” Jackson Papers.
68. Memorandum entitled “Reasons for Combining Wage, Hours, Child Labor and Other Provisions in One Bill,” Corcoran Papers.
69. Memorandum entitled “Explanation of Bill Attached,” Jackson Papers.
70. Memorandum entitled “Sectional Analysis of Fair Labor Standards Bill,” Jackson Papers.
71. Ibid.
72. Reilly to Perkins, May 13, 1937, Record Group 174, National Archives.
73. Douglas and Hackman, “The Fair Labor Standards Act, Part I,” 497.
74. “Prepared Statement of Secretary of Labor, Frances Perkins,” June 4, 1937, Perkins Papers.
75. Patterson, Congressional Conservatism and the New Deal, 211.
76. “Explanation of Attached Bill,” Jackson Papers.
77. Ibid.
78. Dorothy Sells, “Memorandum Re. Fair Labor Standards Bill of 1937,” June 1, 1937, Record Group 174, National Archives.
79. Ibid.
80. Ibid.
81. A journalist reported that “a bluebird flew in the window of the hearing room, causing laughter and references to the emblem of NRA.” New York Times, June 3, 1937.
82. U.S. Congress, Committee on Education and Labor, Hearings on Fair Labor Standards Act, 75th Cong., 1st sess., 1937.
83. Jackson submitted a separate memorandum that “defended the charges that it might constitute an unwarranted delegation of congressional authority to the executive branch” in order to quiet those who suggested that it resembled the NRA. New York Times, June 3, 1937.
84. “Explanation of Attached Bill,” Jackson Papers.
85. “Prepared Statement of Secretary of Labor, Frances Perkins,” June 4, 1937, Perkins Papers.
86. Memorandum entitled “Prepared Testimony for the Joint Labor Committee,” Jackson Papers.
87. “Prepared Statement of Secretary of Labor, Frances Perkins,” June 4, 1937, Perkins Papers.
88. “Prepared Testimony for the Joint Labor Committee,” Jackson Papers.
89. Ibid.
90. “Explanation of Attached Bill,” Jackson Papers.
91. The National Association of Manufacturers, however, opposed the plan from the beginning, calling it “new restrictive, experimental legislation.” New York Times, May 24, 1937.
92. During the hearings, Jackson distinguished this legislation from the NRA on two grounds. First, he explained that the wages and hours bill laid down definite standards, whereas the NRA had not. Second, the bill did not cover occupations “where the ‘flow’ of interstate commerce had come to a final rest,” as it had with the poultry in the Schechter decision. U.S. Congress, Joint Committee on Education and Labor, Hearings on Fair Labor Standards Act, 75th Cong., 1st sess., 1937.
93. Ibid.
94. New York Times, June 16, 1937.
95. U.S. Congress, Joint Committee on Education and Labor, Hearings on Fair Labor Standards Act, 75th Cong., 1st sess., 1937.
96. According to the New York Times, the Chamber of Commerce convention indicated that not all its Southern members opposed the legislation: Several [r]epresentatives from that section having a pronounced sympathy with labor aims declared that fixing of minimum wages and maximum hours would do for Southern workers in a year what otherwise could not be accomplished in possibly two or three decades. (New York Times, May 4, 1937)
97. U.S. Congress, Subcommittee of the Committee on Labor, Hearings on H.R. 9072 (the Ellenbogen bill) 74th Cong., 2nd sess., 1936; and New York Times, May 21, 1937.
98. New York Times, May 22, 1937.
99. Ibid.
100. U.S. Congress, Joint Committee on Education and Labor, Hearings on Fair Labor Standards Act, 75th Cong., 1st sess., 1937; and New York Times, June 12, 1937.
101. Aside from Green, Lewis, and Hillman, John P. Frey (Metal Trades Department), J.W. Williams (Building Trades Department), and I.M. Ornburn (Label Trades Department) of the AFL opposed the bill “on the grounds that there was no need for government control in connection with wages and hours, that the unions, through collective bargaining agreements, should be entirely responsible for this field” (quoted from memorandum on the “History of the Fair Labor Standards Act,” Perkins Papers).
102. Trepp, Jean Carol, “Union-Management Cooperation and Southern Organizing Campaign,” Journal of Political Economy 39 (1931): 602–24Google Scholar.
103. Gompers, Samuel, “Cooperative Effort Succeeds,” American Federationist 31 (1924): 574–75Google Scholar.
104. See Craig Phelan, “William Green and the Ideal of Christian Cooperation,” in Labor Leaders in America, eds. Dubofsky, Melvyn and Van Tine, Warren (Urbana: University of Illinois Press, 1987), 143–46Google Scholar.
105. Gordon, New Deals, 87–88.
106. Trepp, “Union-Management Cooperation and Southern Organizing Campaign,” 624.
107. One Representative explained to a reporter at the New York Times, “naturally, labor is not going to fight such a proposal openly” (New York Times, May 4, 1937).
108. Ibid. Also see Elizabeth Brandeis, “Protective Legislation,” in Labor and the New Deal, eds. Milton Derber and Edwin Young (Madison: University of Wisconsin Press, 1957, 220–21); and New York Times, May 24, 1937.
109. New York Times, June 5, 1937.
110. New York Times, June 3, 1937.
111. New York Times, June 5, 1937.
112. William Green, “Fair Labor Standards,” American Federationist 44 (1937): 700.
113. U.S. Congress, Joint Committee on Education and Labor, Hearings on Fair Labor Standards Act, 75th Cong., 1st sess., 1937, 121, 211, 271–308; memorandum entitled “History of the Fair Labor Standards Act,” Perkins Papers; Green, William, “Fair Labor Standards Bill” American Federationist 44 (1937): 719–28Google Scholar for a summary of his testimony. Also see Ruth L. Horowitz, Political Ideologies of Organized Labor (New Brunswick: Transaction Books, 1978), 187–88.
114. Excerpts from Green's testimony are in “Fair Labor Standards Bill,” American Federationist 44 (1937): 717–28.
115. Brandeis, “Protective Legislation,” 223.
116. John L. Lewis, “What is Labor Thinking,” Public Opinion Quarterly 1 (1937): 27–28; and memorandum entitled “History of the Fair Labor Standards Act,” Perkins Papers.
117. Ibid. Also see New York Times, May 24, 1937.
118. Walter L. Pope to Jackson, June 8, 1937, Jackson Papers.
119. See Congressional Record 75th Cong., 1st sess., 81, pt. 7 (1937): 7279–82, 7373–448; and AFL Convention Proceedings, 1937.
120. Memorandum entitled “Fair Labor Standards Bill as reported by the Senate Committee on July 6, 1937,” Perkins Papers, n.d.; New York Times, June 4, 1937.
121. Memorandum for Mr. Reed from Walter L. Pope, July 9, 1937, Jackson Papers.
122. U.S. Congress, Joint Committee on Education and Labor, Hearings on Fair Labor Standards Act, 75th Cong., 1st sess., 1937.
123. Memorandum entitled “History of the Fair Labor Standards Act,” Perkins Papers. Also see Fraser, Labor Will Rule, 391– 94.
124. Ibid. Also see Winifred D. Wandersee, “I’d Rather Pass a Law than Organize a Union”: Frances Perkins and the Reformist Approach to Organized Labor,” Labor History 34 (1993): 14–15.
125. Quoted from Brandeis, “Protective Legislation,” 223.
126. U.S. Congress, Joint Committee on Education and Labor, Hearings on Labor Standards Act, 75th Cong., 1st sess., 1937, 944.
127. Ibid., 943.
128. Robert H. Jackson, “Labor's New Rights and Responsibilities,” address at New York State Federation of Labor Convention, August 24, 1937, Jackson Papers.
129. Congressional Record 75th Cong., 1st sess., 81, pt. 7 (1937): 7957.
130. Memorandum entitled “Fair Labor Standards Bill as Passed by the Senate July 22, 1937,” Perkins Papers.
131. Memorandum entitled “Fair Labor Standards Bill as Reported with Amendments by the House Committee on Labor, August 6, 1937,” Perkins Papers; and Congressional Record 75th Cong., 1st sess., 81, part 7 (1937): 7669.
132. “Republicans, Neutrality – and Azaleas,” Nation 18 (1938), 494.
133. Paul Y. Anderson, “What the Election Means,” New Republic 147 (1938): 527–28; “The 1938 Primaries Marked by Heavy Voting,” Congressional Digest 17 (1938): 230–31; and Editorial, Nation 146 (1938): 601.
134. Industry also capitalized on organized labor's opposition. Stephen Early, Secretary to the President to Thomas Corcoran, Nov. 24, 1937, Corcoran Papers.
135. Editorial, Nation 146 (1938), 454; Congressional Record 75th Congress, 2nd sess., 82, pt. 3 (1937): 175.
136. “Minimum Wages,” American Federationist 44 (1937): 589; and “The Wage and Hour Law,” American Federationist 45 (1938): 1197–202.
137. Mary Anderson, “Wages and Hours Act,” American Federationist 45 (1938): 689–90; “Shoot the Works: Miss Perkins Reconsidered,” New Republic 144 (1938): 302; “A Year of the Minimum Wage,” American Federationist 45 (1938): 369–75; Editorial, Nation 18 (1938), 683; and Congressional Record 75th Cong., 2nd sess., pt. 9 (1938): 9178, 9267.
138. Douglas, Paul H. and Hackman, Joseph, “The Fair Labor Standards Act of 1938 II,” Political Science Quarterly 54 (1939): 29– 30 CrossRefGoogle Scholar, untitled memorandum about the Fair Labor Standards Act, Corcoran Papers.
139. The advocates of the NLRB fought to remain outside the executive branch.
140. The Wages and Hours Division in 1941 had 1,200 inspectors. While the population in the United States almost doubled, the number of inspectors has only increased by 200 to 1,400. The budget of the Wages and Hours Division is part of the Department of Labor's budget.
141. Clara F. Schluss, “Closing the Minimum Wage Gap,” 13– 17 repr. in the Hearings before the Subcommittee on Labor Standards, Committee on Education and Labor, 95th Cong., 1st sess., 1978.
142. U.S. v. Darby 312 U.S. 100 (1941). The defendants were Southern sawmill operators charged with wage and hour violations.
143. Note, “Interstate Commerce – Power of Congress – Fair Labor Standards Act held Constitutional,” Harvard Law Review 54 (1941): 883.
144. Irons, New Deal Lawyers, 292–93.
145. One legal commentator noted that “Congress, in its declaration of policy, found that sub-standard labor not only causes labor disputes which burden the free flow of commerce but also constitutes an unfair method of competition.” See Federal Trade Commission v. R.F. Keppel & Bro., Inc., 291 U.S. 304 (1934); and Federal Trade Commission v. Bunte Bros., Inc., 312 U.S. 349 (1941).
146. Kurland, Philip B. and Casper, Gerhard S., eds., Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law, Arlington: University Public of America Press, 1975 Google Scholar), 37: 606–9.
147. See Herman, Samuel, “The Administration and Enforcement of the Fair Labor Standards Act,” Law and Contemporary Problems 6 (1939): 374–75CrossRefGoogle Scholar; and Clark Dickinson, Z., “The Organization and Functioning of Industry Committees under the Fair Labor Standards Act,” Law and Contemporary Problems 6 (1939): 353–67CrossRefGoogle Scholar.
148. See Howard Wial, “Minimum-Wage Enforcement and the Low-Wage Labor Market,” Task Force Working Paper no. WP11, Task Force on Reconstructing America's Labor Market Institutions, 1999, 10.
149. Ibid.
150. Ibid., 9.
151. “Federal Wages and Hours Law of 1938,” Monthly Labor Review 47 (1938): 107–12.
152. Wial, “Minimum-Wage Enforcement and the Low-Wage Labor Market,” 8.
153. Ibid., 7–8.
154. Ibid., 8–9. Injunctions are another strategy the Wage and Hour Division uses. On behalf of an underpaid worker or a group of workers, it will enjoin an employer.
155. Testimony of William R. McComb, Administrator of the Wage and Hour and Public Contracts Divisions of the Department of Labor, Jan. 28, 1949, Public Hearings on H.R. 2033, “A Bill to Provide for the Amendment of the Fair Labor Standards Act of 1938,” 115.
156. Wial, “Minimum-Wage Enforcement and the Low-Wage Labor Market,” 7.
157. Ibid., 21.
158. See Millis, Harry A. and Brown, Emily Clark, From the Wagner Act to Taft-Hartley (Chicago: University of Chicago Press, 1950)Google Scholar; Alton Lee, R., Truman and Taft-Hartley (Lexington: University of Kansas Press, 1966)Google Scholar; Gross, Broken Promise, 1–25; Goldfield, Michael, The Decline of Organized Labor in the United States (Chicago: University of Chicago Press, 1985), 32–33 Google Scholar; Gross, Broken Promise, 1–25; and Ruth O’Brien, “Taking the Conservative State Seriously: Statebuilding and Restrictive Labor Practices in Postwar America,” Labor Studies Journal 21 (1997): 33–63.
159. Frey, John P., “No Fair! Portal to Portal Suits Violate a Basic Principle of Collective Bargaining,” American Federationist 54 (1947): 17 Google Scholar.
160. Ibid.
161. “Prepared Statement of Secretary of Labor, Frances Perkins,” June 4, 1937, Perkins Papers.
162. See Goldfield, Michael, The Color of Politics: Race, Class, and the Mainsprings of American Politics (New York: New Press, 1997)Google Scholar: Milkman, Ruth, “Gender and Trade Unionism in Historical Perspective,” in Women, Politics and Change, ed. Gurin, Patricia and Tilly, Louise (New York: Russell Sage Foundation, 1990), 87–107 Google Scholar; Buhle, Mari Jo, “Gender and Labor History,” in Perspectives on American Labor History: The Problems of Synthesis, ed. Carroll Moody, J. and Kessler-Harris, Alice (DeKalb: Northern Illinois University Press, 1989), 551–79Google Scholar; and Faue, Elizabeth, Community of Suffering and Struggle: Women, Men, and the Labor Movement in Minneapolis, 1915– 1945 (Chapel Hill: University of North Carolina Press, 1991)Google Scholar.
163. See Ruth O’Brien, “Duality and Division: The Development of American Labor Policy from the Wagner Act to the Civil Rights Act,” International Contributions to Labour Studies (1994): 21– 51.