1. The AFL was the largest association of trade unions in the United States at the start of the twentieth century. It faced difficult times in this era driven largely by state hostility, particularly judicial hostility, to collective bargaining through constitutional invalidation of protective labor regulation (Lochnerian jurisprudence) and the use of the injunction to stymie collective bargaining activities. This state hostility pushed the AFL, and its president Samuel Gompers, to adopt their “pure and simple unionism” that emphasized collective bargaining unmediated by the state. Workers would be protected and would become healthy, independent and productive citizens, not through regulation, but through the collective self-help provided by collective bargaining. This collective free contract liberty, according to the AFL, was a constitutional right that should be protected as readily from state interference as the free contract liberty of the individual. This voluntaristic reliance on trade unionism for worker empowerment represented the labor Constitution that the women of the WTUL wished to join. For an explanation of the constitutional vision of collective free contract, see Forbath, William E., Law and the Shaping of the American Labor Movement (Cambridge, MA: Harvard University Press, 1991)Google Scholar; Pope, James Gray, “Labor's Constitution of Freedom,” Yale Law Journal 106 (1997)Google Scholar. For a discussion on the voluntarist program of the AFL, see Greene, Julie, Pure and Simple Politics: The American Federation of Labor and Political Activism, 1881–1917 (New York: Cambridge University Press, 1998)Google Scholar. This constitutional vision would not be realized as the AFL would later join forces with progressive reformers to embrace state sanctioning and monitoring of collective bargaining as the New Deal era approached.

2. Muller v. Oregon, 208 U.S. 416 (1908).

3. See generally Orren, Karen, Belated Feudalism: Labor, the Law, and Liberal Development in the United States (New York: Cambridge University Press, 1991)Google Scholar; Forbath, Law and the Shaping of the American Labor Movement; Kersch, Kenneth I., Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law (New York: Cambridge University Press, 2004)Google Scholar; Novkov, Julie, Constituting Workers, Protecting Women: Gender, Law, and Labor in the Progressive Era and New Deal Years (Ann Arbor: University of Michigan Press, 2001)Google Scholar; Ritter, Gretchen, The Constitution as Social Design: Gender and Civic Membership in the American Constitutional Order (Stanford, CA: Stanford University Press, 2006)Google Scholar.

4. For a discussion of the strategic decision making of social movement organizations, see Berry, Jeffrey M., Lobbying for the People: The Political Behavior of Public Interest Groups (Princeton, NJ: Princeton University Press, 1977)Google Scholar. See also Zald, Mayer N. and McCarthy, John D., “Social Movement Industries: Competition and Conflict among Smos,” in Social Movements in an Organizational Society: Collected Essays, ed. Zald, Mayer N. and McCarthy, John D. (New Brunswick: Transaction Books, 1987)Google Scholar; Costain, Anne N., Inviting Women's Rebellion: A Political Process Interpretation of the Women's Movement (Baltimore: Johns Hopkins University Press, 1992)Google Scholar; Freeman, Jo, “A Model for Analyzing the Strategic Options of Social Movement Organizations,” in Waves of Protest: Social Movements since the Sixties, ed. Freeman, Jo and Johnson, Victoria L. (Lanham, MD: Rowman & Littlefield Publishers, 1999)Google Scholar.

5. See generally Thelen, Kathleen, “Historical Institutionalism in Comparative Politics,” Annual Review of Political Science 2, no. 1 (1999)Google Scholar; Orren, Karen and Skowronek, Stephen, The Search for American Political Development (Cambridge, UK; New York: Cambridge University Press, 2004)Google Scholar; Pierson, Paul, Politics in Time: History, Institutions, and Social Analysis (Princeton, NJ: Princeton University Press, 2004)Google Scholar.

6. West Coast Hotel v. Parrish, 300 U.S. 379 (1937). Lochner v. New York, 198 U.S. 45 (1905).

7. For a review of scholarship that points to the importance of West Coast Hotel as a new direction in constitutional development, see Rowe, Gary D., “Lochner Revisionism Revisited,” Law and Social Inquiry 24 (1999)Google Scholar. West Coast Hotel has been characterized in recent years by William Leuchenberg as marking a political/institutional settlement; by Bruce Ackerman as heralding a “constitutional moment” embracing activist government; by Cass Sunstein as establishing a new baseline for constitutional interpretation; and by Robert Post as emphasizing a new commitment to harmonizing constitutional meaning with social and economic realities. See Leuchtenburg, William Edward, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York: Oxford University Press, 1995)Google Scholar; Ackerman, Bruce A., We the People: Foundations (Cambridge, MA: Belknap Press, 1991)Google Scholar; Ackerman, Bruce A., We the People: Transformations (Cambridge, MA: Belknap Press, 2000)Google Scholar; Sunstein, Cass R., “Lochner's Legacy,” Columbia Law Review 87 (1987)Google Scholar; Post, Robert C., “Defending the Lifeworld: Substantive Due Process in the Taft Court Era,” Boston University Law Review 78 (1998)Google Scholar.

8. Novkov, Constituting Workers, Protecting Women, 4–14.

9. Ritter, The Constitution as Social Design, 136–42. This transition is completed shortly after West Coast Hotel in United States v. Darby, 312 U.S. 100 (1941), where the Court explicitly extends the protection of a minimum wage to men.

10. This strategic movement was known as The New Departure. See Balkin, Jack M., “How Social Movements Change (or Fail to Change) the Constitution: The Case of the New Departure,” Suffolk University Law Review 39 (2005)Google Scholar; Ritter, The Constitution as Social Design, 14–29.

11. A woman's right to vote under the Fourteenth Amendment is rejected in Minor v. Happersett, 88 U.S. 162 (1874). A woman's right to pursue an occupation is rejected in Bradwell v. Illinois, 83 U.S. 130 (1872).

12. In his concurring opinion in Bradwell, Justice Bradley refers to women not as citizens but “women as citizens,” identifying them as holding a distinct category of membership in the polity. He famously remarks, “On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.” Bradwell v. State of Illinois, 83 U.S. 130, 141 (1872).

13. However, see Lipschultz's argument that association with legal allies, such as Louis Brandeis and Felix Frankfurter, who held patriarchal views of women undercut the feminist dimension of the difference-based claims made by the NCL before the courts. Lipschultz, Sybil, “Social Feminism and Legal Discourse: 1908–1923,” Yale Journal of Law and Feminism 2 (1989–1990)Google Scholar.

14. Mettler, Suzanne, Dividing Citizens: Gender and Federalism in New Deal Public Policy (Ithaca, NY: Cornell University Press, 1998)Google Scholar; Ritter, The Constitution as Social Design.

15. However, the passage and enforcement of state regulation of the workplace was by no means the only approach employed by women activists to improve the lot of women in industry. Women's movement organizations also experimented with ethical consumerism, trade union organizing (principally through the WTUL), as well as adding a working-class voice to the suffrage campaign in order to improve the political agency of working women so that they might help themselves, particularly in the expansion of state labor regulation in their favor.

16. Boydston, Jeanne, Home and Work: Housework, Wages, and the Ideology of Labor in the Early Republic (New York: Oxford University Press, 1990)Google Scholar.

17. Skocpol, Theda, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge, MA: Belknap Press, 1992)Google Scholar. See also Koven, Seth and Michel, Sonya, Mothers of a New World: Maternalist Politics and the Origins of Welfare States (New York: Routledge, 1993)Google Scholar; Sklar, Kathryn Kish, Florence Kelley and the Nation's Work (New Haven: Yale University Press, 1995)Google Scholar; Sklar, Kathryn Kish, “The Historical Foundations of Women's Power in the Creation of the American Welfare State, 1830–1930,” in Mothers of a New World: Maternalist Politics and the Origins of Welfare States, ed. Koven, Seth and Michel, Sonya (New York: Routledge, 1993)Google Scholar. Given my engagement with this literature on gender and the construction of welfare states, I will continue to use “maternalism” throughout this article to describe the rhetoric and policy agenda of the NCL, WTUL and other organizations within the women's movement that focused on the extension of domestic ideals into public life and the integration of women's special identity and special needs associated with their roles as wives and mothers into social provision and civic identity. See Lipschultz's work, however, for the argument that “social feminism” better captures the approach taken by the NCL and other women's groups, like the WTUL, on labor standards. Lipschultz, Sybil, “Hours and Wages: The Gendering of Labor Standards in America,” Journal of Women's History 8 (1996)Google Scholar. For a general discussion of the limits of feminist terminology, see Cott, Nancy F., “What's in a Name? The Limits of ‘Social Feminism;’ or Expanding the Vocabulary of Women's History,” The Journal of American History 76 (1989)Google Scholar.

18. Skocpol, Protecting Soldiers and Mothers. See also Wilkinson, Patrick, “The Selfless and the Helpless: Maternalist Origins of the U.S. Welfare State” Feminist Studies 25, no. 3 (1999)CrossRefGoogle Scholar.

19. Gordon, Linda, Pitied but Not Entitled: Single Mothers and the History of Welfare, 1890–1935 (New York: Free Press, 1994)Google Scholar.

20. Nutter, Kathleen Banks, The Necessity of Organization: Mary Kenney O'Sullivan and Trade Unionism for Women, 1892–1912 (New York: Garland Pub., 2000)Google Scholar.

21. Kessler-Harris, Alice, “Treating the Male As ‘Other’: Redefining the Parameters of Labor History,” Labor History 34, no. 2 (1993)Google Scholar. See also Kessler-Harris, Alice, Gendering Labor History (Urbana: University of Illinois Press, 2006)Google Scholar.

22. Historian Annelise Orleck relies on the concept of “industrial feminism” as a way of distinguishing between the feminism of the trade union women in the WTUL from the maternalism, or social feminism, of the allies. These women, such as Rose Schneidermann, Fannia Cohn, Mary Kenney O'Sullivan, Pauline Newman and others, would struggle, often unsuccessfully, to maintain a distinct class perspective. In highlighting these class tensions, I do not mean to suggest that industrial feminism was co-opted by social feminism during this period and overrun by middle class ideology. As Dorothy Sue Cobble suggests, working-class feminists during this period were pragmatic, sympathetic to claims of both equality and difference. This experience with the WTUL and NCL illustrates part of the larger challenge that faced working-class women during this period: searching for their own voice distinct not only from their industrial brothers, but also from their middle-class sisters. A voice, as Cobble argues, they would not find until later in the twentieth century. Orleck, Annelise, Common Sense & a Little Fire: Women and Working-Class Politics in the United States, 1900–1965 (Chapel Hill: University of North Carolina Press, 1995)Google Scholar; Cobble, Dorothy Sue, The Other Women's Movement: Workplace Justice and Social Rights in Modern America (Princeton, NJ: Princeton University Press, 2004)Google Scholar. See also Kessler-Harris, Alice, “Where Are the Organized Women Workers?” Feminist Studies 3, no. 1/2 (1975)Google Scholar; Keslser-Harris, Alice, “Organizing the Unorganizable: Three Jewish Women and Their Union,” Labor History 17, no. 1 (1976)Google Scholar; Dye, Nancy Schrom, “Creating a Feminist Alliance: Sisterhood and Class Conflict in the New York Women's Trade Union League, 1903–1914,” Feminist Studies 2, no. 2/3 (1975)Google Scholar; Tax, Meredith, The Rising of the Women: Feminist Solidarity and Class Conflict, 1880–1917 (New York: Monthly Review Press, 1980)Google Scholar; Nutter, The Necessity of Organization; Bender, Daniel E., Sweated Work, Weak Bodies: Anti-Sweatshop Campaigns and Languages of Labor (New Brunswick, NJ: Rutgers University Press, 2004)Google Scholar.

23. Remarks originally appeared in Weekly Bulletin of the Clothing Trades (24 March 1905). Quoted in Nancy Schrom Dye, As Equals and as Sisters: Feminism, the Labor Movement, and the Women's Trade Union League of New York (Columbia: University of Missouri Press, 1980), 41–2. This frustration would also stimulate other activists from the settlement tradition, such as Florence Kelley, to pursue other methods of assistance to the working poor beyond unionizing. In Kelley's case, as will be discussed below, she would pursue both ethical consumerism and protective legislation while heading the NCL. For a general discussion of this phenomenon and the manifold approaches middle-class women took to aid the poor, see Skocpol, Protecting Soldiers and Mothers; Sklar, Florence Kelley and the Nation's Work.

24. Interestingly, the British WTUL was formed by a British suffragist, Emma Ann Paterson, who was influenced by the efforts of American union women whom she encountered during a visit to this country in 1873. In 1919, a member of the British WTUL speaking at the American WTUL convention would joke that it was unclear whether the British league was the American league's “grandmother or granddaughter.” Boone, Gladys, The Women's Trade Union Leagues in Great Britain and the United States of America (New York: Columbia University Press, 1942), 20Google Scholar. See also Davis, Allen F., “The Women's Trade Union League: Origins and Organization,” Labor History 5 (1964)Google Scholar; Foner, Philip Sheldon, Women and the American Labor Movement, 2 vols., vol. 1 (New York: Free Press, 1979)Google Scholar. For a history of the British WTUL, see Jacoby, Robin Miller, The British and American Women's Trade Union Leagues, 1890–1925 (Brooklyn, NY: Carlson Publications, 1994)Google Scholar.

25. Rodgers, Daniel T., Atlantic Crossings: Social Politics in a Progressive Age (Cambridge, MA: Belknap Press of Harvard University Press, 1998)Google Scholar.

26. The historical recounting that follows of the initial founding and early work of the WTUL is drawn principally from Foner, Women and the American Labor Movement, 290–302. For other extensive historical accounts of the founding and early years of the WTUL, see Henry, Alice, The Trade Union Woman (New York: D. Appleton and Company, 1915)Google Scholar; Henry, Alice, Women and the Labor Movement (New York: George H. Doran Company, 1923)Google Scholar; Boone, The Women's Trade Union Leagues in Great Britain and the United States of America; Davis, “The Women's Trade Union League: Origins and Organization”; Dye, As Equals and as Sisters; Kenneally, James J., Women and American Trade Unions, 2nd ed. (Montréal: Eden Press Women's Publications, 1981)Google Scholar; Jacoby, The British and American Women's Trade Union Leagues, 1890–1925.

27. Kenney O'Sullivan had served as a part-time organizer for the AFL in 1892, but her appointment lasted only five months, as the AFL council decided that there was no need for a woman organizer after all. Kenney O'Sullivan's experience would prove prophetic of the AFL's inconsistent attitude toward organizing women in the coming decades. See generally Nutter, The Necessity of Organization.

28. As for the name, the WTUL began as the Women's National Trade Union League, but the name would be changed to the National Women's Trade Union League in 1907.

29. Constitution of the National Women's Trade Union League of America, Adopted in Boston, MA, 17–19 November 1903. Quoted in Foner, Women and the American Labor Movement, 299–300.

30. Constitution of the National Women's Trade Union League of America, Adopted in Boston, MA, 17–19 November 1903. Quoted in Ibid., 300.

31. Letter from Walling to O'Reilly (25 November 1903). Quoted in Ibid.

32. Constitution of the National Women's Trade Union League of America, Adopted in Boston, MA, 17–19 November 1903. Quoted in Ibid.

33. Henry, The Trade Union Woman, 87.

34. Ibid., 59–61.

35. Kessler-Harris, Alice, Out to Work: A History of Wage-Earning Women in the United States (New York: Oxford University Press, 1982), 152Google Scholar.

36. These three unions were the Amalgamated Clothing Workers, the United Garment Workers, and the ILGWU. Kessler-Harris, “Where Are the Organized Women Workers?”

37. Orleck, Common Sense & a Little Fire.

38. Dye, As Equals and as Sisters, 45.

39. Philip Foner reports that out of the 496 members of the AFL present at the 1903 convention, only 5 were women. Foner, Women and the American Labor Movement, 301.

40. Gompers, Samuel and Salvatore, Nick, Seventy Years of Life and Labor: An Autobiography (Ithaca, NY: ILR Press, New York State School of Industrial and Labor Relations, Cornell University, 1984), 128Google Scholar.

41. Foner, Women and the American Labor Movement, 300–1.

42. As discussed earlier, Alice Kessler-Harris estimates that in 1900 a mere 3.3 percent of industrial women workers were organized into unions. Kessler-Harris, Out to Work, 152. For a comprehensive history of women in the American labor movement before the formation of the WTUL, upon which the following section is drawn, see Henry, The Trade Union Woman; Foner, Women and the American Labor Movement; Kessler-Harris, Out to Work, Kessler-Harris, Gendering Labor History. See also Boone, The Women's Trade Union Leagues in Great Britain and the United States of America, 43–63.

43. Foner, Women and the American Labor Movement, 257.

44. Ibid., 258. According to Alice Kessler-Harris, 87 percent of women workers at the turn of the century were unmarried, and almost half were under twenty-five years old. Kessler-Harris, Out to Work: A History of Wage-Earning Women in the United States, 153.

45. African-American women in trades did not share the same gendered labor values as their white counterparts. They were less likely to separate themselves from men or assume that work after marriage was not the norm. See Hall, Jacquelyn Dowd, “O. Delight Smith's Progressive Era: Labor, Feminism, and Reform in the Urban South,” in Visible Women: New Essays on American Activism, ed. Hewitt, Nancy A. and Lebsock, Suzanne (Urbana, Ill.: University of Illinois Press, 1993)Google Scholar.

46. The WTUL, by one of its member's own admission, did not accomplish much in its early years, as it focused on preparatory work, including information gathering on trade union practices, recruiting women organizers from the working class, and marketing themselves and their mission to the male trade unionists whose cooperation they would require. See Henry, The Trade Union Woman, 63.

47. Foner, Women and the American Labor Movement, 319. See also Kessler-Harris, Out to Work, 153. Kessler-Harris points out that this lack of skill also meant that women workers were particularly susceptible to exploitation by employers and efforts by those employers to thwart their unionization.

48. Infighting occurred within the WTUL over the craft union issue with some of the organizers, like Melinda Scott, who favored a strategy of targeting skilled American women for organization, though they were fewer, because it would appease the AFL and succeed more readily within the AFL model. Other organizers, like Rose Schneiderman, favored attention to the larger numbers of unskilled, often immigrant women who suffered the greater exploitation by employers but were more difficult to unionize successfully. See Dye, As Equals and as Sisters, 115–7.

49. Ibid., 79–80.

50. See generally Kessler-Harris, “Organizing the Unorganizable …”; Orleck, Common Sense & a Little Fire; Bender, Sweated Work, Weak Bodies. For instance, Rose Schneiderman left the New York garment trades out of frustration to work full time for the WTUL, later becoming its president.

51. Kessler-Harris, Out to Work, 155.

52. Gilthorpe, William, “Advancement,” American Federationist (October 1910): 847Google Scholar.

53. Safford, John, “The Good That Trade Unions Do,” American Federationist, August 1902, 423Google Scholar.

54. O'Donnell, Edward, “Women as Breadwinners: The Error of the Age,” American Federationist, October 1897, 186Google Scholar.

55. Kessler-Harris, Out to Work, 154–7.

56. Gompers, Samuel, “Should the Wife Help Support the Family?” American Federationist (January 1906): 36Google Scholar.

57. Ibid.

58. WTUL Proceedings of the 1909 Convention, 27 September 1909. Quoted in Jacoby, The British and American Women's Trade Union Leagues, 1890–1925, 25.

59. Blewett, Mary H., Men, Women, and Work: A Study of Class, Gender, and Protest in the Nineteenth-Century New England Shoe Industry (Urbana: University of Illinois Press, 1988)Google Scholar. See also Kessler-Harris, “Where Are the Organized Women Workers?”; Kessler-Harris, “Organizing the Unorganizable”; Orleck, Common Sense & a Little Fire; Nutter, The Necessity of Organization; Bender, Sweated Work, Weak Bodies.

60. Dye, As Equals and as Sisters, 82–3.

61. Boone, The Women's Trade Union Leagues in Great Britain and the United States of America, 60.

62. Henry, The Trade Union Woman, 150.

63. Ibid., 147.

64. Marot, Helen, American Labor Unions (New York: H. Holt and Company, 1914), 71–3Google Scholar.

65. See Henry, The Trade Union Woman, 142–60. Despite this sex-based approach to union recruitment, the goal remained to organize women into AFL-affiliated male unions wherever possible and mainstream their interests within those unions. The WTUL did not wish to see women continue to be ghettoized either inside or outside the trade union movement. That would not raise their wages or improve their working conditions. However, this openness to sex-based solutions illustrated the comfort level the WTUL always had with gender distinctions that would later support an embrace of an expressly maternalist approach to protecting the interests of women workers.

66. The most comprehensive work on the difficulties the WTUL faced in organizing women day-to-day, on the ground, is the case study of the New York league by Nancy Dye. Dye reports the broad array of practical problems the league faced in unionizing urban, industrial women. See Dye, As Equals and as Sisters.

67. Report on New York Conference, in Union Labor Advocate, Volume 9, October 1908. Quoted in Jacoby, The British and American Women's Trade Union Leagues, 1890–1925, 50.

68. This school, which operated intermittently, was open until 1926. For a full history of the school see Ibid., 55–67. Jacoby reports that the school offered increasingly bureaucratic and administrative training for the trainees, which reflected the skill set needed for the legislative program to which the WTUL had turned its attention.

69. There had been no women organizers employed between 1892 and 1908. Henry, Women and the Labor Movement, 95.

70. Foner, Women and the American Labor Movement, 318.

71. Ibid.

72. Ibid., 318–9. See also Kenneally, Women and American Trade Unions.

73. Dye, As Equals and as Sisters: Feminism, the Labor Movement, and the Women's Trade Union League of New York, 102.

74. Ibid.

75. Secretary's Report of the WTUL of New York, 22 April 1911. Quoted in Ibid., 84–5.

76. Kessler-Harris, Gendering Labor History; Kessler-Harris, Out to Work.

77. For an extensive history of these strikes and WTUL participation, upon which the following section is principally drawn, see Foner, Women and the American Labor Movement, 324–73. See also Dye, As Equals and as Sisters: Feminism, 88–109.

78. Schneiderman, Rose and Goldthwaite, Lucy, All for One (New York: P. S. Eriksson, 1967), 8Google Scholar.

79. The ILGWU did better by their female members, but only marginally so.

80. Kessler-Harris, Out to Work, 166. See also Nutter, The Necessity of Organization.

81. Letter from Sue Ainslie Clark to Margaret Dreier Robins, April 1912. Quoted in Dye, As Equals and as Sisters, 105–6.

82. Letter from Melinda Scott to Leonora O'Reilly, 30 April 1909. Quoted in Ibid., 103.

83. Letter from Margaret Dreier Robins to Mary Dreier, 1913. Quoted in Ibid.

84. Remarks published in New York Call, 15 June 1915. Quoted in Foner, Women and the American Labor Movement, 487.

85. Letter from Raymond Robins to Mary Dreier, 12 November 1913. Quoted in Dye, As Equals and as Sisters, 108.

86. Proceedings of WTUL Convention, 1913, Secretary's Report. Quoted in Boone, The Women's Trade Union Leagues in Great Britain and the United States of America, 110.

87. Minutes of First Executive Board Meeting of the WTUL, 24 March 1904. Reported in Foner, Women and the American Labor Movement, 303.

88. Ibid., 310–2.

89. Nancy Dye's study of the New York league provides in-depth coverage of the class dynamic of the WTUL and the importance of “sisterhood” as a league ideal. See Dye, As Equals and as Sisters. See also Jacoby, The British and American Women's Trade Union Leagues, 1890–1925.

90. See generally Skocpol, Protecting Soldiers and Mothers.

91. Tichenor, Daniel J. and Harris, Richard A., “Organized Interests and American Political Development,” Political Science Quarterly 117, no. 4 (2002)CrossRefGoogle Scholar.

92. Clemens, Elisabeth Stephanie, The People's Lobby: Organizational Innovation and the Rise of Interest Group Politics in the United States, 1890–1925 (Chicago: University of Chicago Press, 1997)Google Scholar.

93. Foner, Women and the American Labor Movement, 304.

94. Letter from “Little Sister” to Leonora O'Reilly, 27 April 1908. Quoted in Ibid., 481.

95. See generally Dye, As Equals and as Sisters; Jacoby, The British and American Women's Trade Union Leagues, 1890–1925; Orleck, Common Sense & a Little Fire.

96. Jacoby, The British and American Women's Trade Union Leagues, 1890–1925, 119.

97. Minutes of Executive Board Meeting of the WTUL, 7 October 1904. Reported in Foner, Women and the American Labor Movement, 304.

98. Drake, Barbara, Women in Trade Unions (London: The Labour Research Dept, 1920), 18Google Scholar. See also Jacoby, The British and American Women's Trade Union Leagues, 1890–1925, 121.

99. Foner, Women and the American Labor Movement, 304.

100. The AFL fought for an eight-hour day for all workers from the late nineteenth century into the early twentieth century, but by 1914 it supported such restrictions only for women and children. They had become true believers in voluntarism by this point. Greene, Pure and Simple Politics, 73–88.

101. Skocpol, Protecting Soldiers and Mothers, 375. See also Baer, Judith A., The Chains of Protection: The Judicial Response to Women's Labor Legislation (Westport, CT: Greenwood Press, 1978)Google Scholar.

102. Novkov, Constituting Workers, Protecting Women, 60–1.

103. For an extensive history of this period of Kelley's life and the passage and enforcement of the Illinois law, see Sklar, Florence Kelley and the Nation's Work.

104. 155 Ill. 98 (1895).

105. Novkov, Constituting Workers, Protecting Women: Gender, 61.

106. Julie Novkov refers to this period of largely sex-blind negotiation and adjustment of the parameters of the police power under the Constitution as one of “generalized balancing.” See Ibid., 37–76.

107. Hours regulations for women were upheld in Washington (State v. Buchanan, 29 Wash. 603 [1902]); Nebraska (Wenham v. State, 65 Neb. 394 [1903]); and Oregon (State v. Muller, 48 Ore. 252 [1906]).

108. For a history of these consumer campaigns, see Sklar, Kathryn Kish, “The Consumers' White Label Campaign of the National Consumers' League, 1898–1918,” in Getting and Spending: European and American Consumer Societies in the Twentieth Century, ed. Strasser, Susan, McGovern, Charles, and Judt, Matthias (New York: Cambridge University Press, 1998)Google Scholar. See also Wolfe, Allis Rosenberg, “Women, Consumerism, and the National Consumers' League in the Progressive Era,” Labor History 16 (1975)Google Scholar; Boris, Eileen, Home to Work: Motherhood and the Politics of Industrial Homework in the United States (New York: Cambridge University Press, 1994), 81–122Google Scholar.

109. Rheta Childe Dorr, who belonged to both the NCL and the WTUL, captured the ideal of social housekeeping well in 1910: “Woman's place is in the Home. Her task is homemaking. But Home is not contained within the four walls of an individual home. Home is the community. The city full of people is the Family. The public school is the real Nursery. And badly do the Home and the Family and the Nursery need their Mother.” Dorr, Rheta Childe and Catt, Carrie Chapman, What Eight Million Women Want (Boston: Small, 1910), 327Google Scholar. See also Skocpol, Protecting Soldiers and Mothers, 20–1.

110. Baker, Paula, “The Domestication of Politics: Women and American Political Society, 1780–1920,” The American Historical Review 89 (1984)CrossRefGoogle Scholar.

111. Gradually the legislative work would overtake the consumer techniques. Much like the story of the WTUL, this alteration in focus and redirection of organizational resources would be driven not only by the enticing success of Muller, but also by the hostility of organized labor to some of the consumption techniques employed by the NCL, particularly the “white label.” For further discussion of the hostility of unions, particularly the Woman's Union Label League toward the NCL, see Sklar, “The Consumers' White Label Campaign of the National Consumers' League, 1898-1918”; Boris, Home to Work.

112. Holden v. Hardy, 169 U.S. 366 (1898).

113. Skocpol, Protecting Soldiers and Mothers, 387.

114. O'Connor, Karen, Women's Organizations' Use of the Courts (Lexington, MA: Lexington Books, 1980), 67Google Scholar.

115. 198 U.S. 45, 57. For a discussion of the plaintiffs' brief in Lochner, see Lipschultz, “Hours and Wages” 115–6.

116. Goldmark, Josephine Clara, Impatient Crusader: Florence Kelley's Life Story (Urbana: University of Illinois Press, 1953), 148Google Scholar. See also O'Connor, Women's Organizations' Use of the Courts, 67–9. Not surprisingly, given the meager efforts of the state attorneys of New York, the night work law was struck down, and when it later reached the state's high court, Lochner was cited as the court argued that women were “adult” citizens capable of freely making contracts. See People v. Williams, 189 N.Y. 131, 134 (1907). Julie Novkov points out that this New York case was an outlier in the emerging pre-Muller consensus at the state level that the police power could be more readily invoked to protect women. Novkov, Constituting Workers, Protecting Women, 101.

117. Dreier, Mary E., Margaret Dreier Robins, Her Life, Letters and Work (New York: Island Press Cooperative, 1950), 46Google Scholar.

118. For a brief history of Muller and the involvement of Brandeis and the NCL, see Woloch, Nancy, Muller V. Oregon: A Brief History with Documents (Boston: Bedford Books of St. Martin's Press, 1996)Google Scholar.

119. For a review of the maternalist arguments of the Brandeis Brief, see Novkov, Constituting Workers, Protecting Women, 117–22.

120. Muller v. Oregon, 208 U.S. 412, 421 (1908).

121. 208 U.S. 412, 422.

122. The NCL may have pressed hard for this maternalist basis for protective legislation for women, but this strategy was largely instrumental in nature, as the NCL considered protective legislation crucial for men as well and worked toward and defended universal laws where possible. The NCL viewed women as the “entering wedge” of universal labor reform. For example, Goldmark and Brandeis articulated a new universal constitutional basis for labor laws in 1912, and the NCL submitted a Brandeis Brief in favor of a universal maximum-hours law in Bunting v. Oregon (243 U.S. 426 [1917]). See Goldmark, Josephine Clara and Brandeis, Louis Dembitz, Fatigue and Efficiency (New York: Charities Publication Committee, 1912)Google Scholar. Vivien Hart refers to the reformers in the NCL, and the WTUL as well, as “reluctant and conflicted maternalists.” Hart, Vivien, Bound by Our Constitution: Women, Workers, and the Minimum Wage (Princeton, NJ: Princeton University Press, 1994), 88Google Scholar. Kathryn Kish Sklar argues that for Kelley, and her allies, gender was a surrogate for class. Maternalist arguments permitted these reformers to make policy inroads on behalf of the working class that could be incrementally exploited. Frances Perkins even dubbed Kelley the “half loaf girl.” See Sklar, “The Historical Foundations of Women's Power in the Creation of the American Welfare State, 1830–1930.”, Sklar, Kathryn Kish, “Two Political Cultures in the Progressive Era: The National Consumers' League and the American Association for Labor Legislation,” in U.S. History as Women's History: New Feminist Essays, ed. Kerber, Linda K., Kessler-Harris, Alice, and Sklar, Kathryn Kish (Chapel Hill: University of North Carolina Press, 1995), 41Google Scholar. Theda Skocpol has critiqued this thesis for undervaluing the ideological investment of these reformers, if not for the unique Kelley herself then certainly for her allies, in maternalism and the cult of true womanhood that buttressed their concerns over the universal ills of industrial exploitation. Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States, 35. See also Wilkinson, “The Selfless and the Helpless: Maternalist Origins of the U.S. Welfare State“. Certainly the social views of league president Margaret Dreier Robins or middle-class ally Rheta Childe Dorr betray no such lack of genuine belief.

123. Given this stunning Constitutional success, Kelley favored the legislative approach now over both ethical consumerism and trade unionism. Woloch, Muller V. Oregon: A Brief History with Documents, 38–41. See also Foner, Women and the American Labor Movement, 304.

124. Woloch, Muller V. Oregon, 41.

125. Ritchie & Co. v. Wayman, 244 Ill. 509 (1910).

126. Minutes of WTUL Executive Board Meeting, 18 March 1909. Reported in Kenneally, James J., “Women and Trade Unions 1870–1920: The Quandary of the Reformer,” Labor History 14 (1973): 46CrossRefGoogle Scholar.

127. The legislative program called for: 1. The eight-hour day. 2. Elimination of night work. 3. Protected machinery. 4. Sanitary workshops. 5. Separate toilet rooms. 6. Seats for women and permission for their use when work allows. 7. Prohibition of the employment of women two months before and after childbirth. 8. Pensions for mothers during the lying-in period. 9. An increased number of women factory inspectors, based on the percentage of women workers in the state. 10. The appointment of women physicians as health inspectors whose duty it shall be to visit all workshops where women and children are employed to examine the physical condition of the workers. 11. A legal minimum wage in the sweated trades. See Henry, Alice, “Convention of the National Women's Trade Union League,” Union Labor Advocate 1909, 22Google Scholar. In this article, I do not explore the extensive legislative work that the WTUL engaged in on workplace safety, sanitation, and benefits issues, as these laws did not routinely raise the same constitutional concerns regarding freedom of contract. It should be noted that during this period of redirection for the WTUL, the Triangle Shirtwaist Company factory fire in New York City in 1911 that killed 146 women garment workers led to a significant increase in legislative activity by the league aimed at industrial safety and factory inspection. For a history of this tragic event and its fallout see Foner, Women and the American Labor Movement, 358–61. See also Dye, As Equals and as Sisters, 144; Jacoby, The British and American Women's Trade Union Leagues, 1890–1925, 124–6.

128. Jacoby, The British and American Women's Trade Union Leagues, 1890–1925, 121–2.

129. Skocpol, Protecting Soldiers and Mothers, 387–8.

130. Jacoby, The British and American Women's Trade Union Leagues, 1890–1925, 123–4.

131. For a study of the relationship/coalition between the female-dominated NCL and the male-dominated AALL, see Sklar, “Two Political Cultures in the Progressive Era.”

132. Hart, Bound by Our Constitution. See also Kessler-Harris, Gendering Labor History.

133. For an extensive study of the minimum-wage campaign for women workers during this era and its relationship to the gendered constitution, see Hart, Bound by Our Constitution.

134. Letter from Florence Kelley to Dr. Jessica B. Peixotto, 15 April 1912. Quoted in Ibid., 72.

135. Gompers, Samuel, “The American Labor Movement,” American Federationist, July 1914, 44Google Scholar.

136. Gompers, Samuel, “Woman's Work, Rights and Progress,” American Federationist, August 1913, 626–7Google Scholar.

137. Jacoby, The British and American Women's Trade Union Leagues, 1890–1925, 126–8.

138. Gompers, Samuel, “Coming into Her Own,” American Federationist, July 1915, 518Google Scholar.

139. This voluntarist approach by the AFL hardly meant that the AFL disengaged fully from politics. The AFL continued to lobby vigorously for legislation, but rather than seeking protective labor regulation, the AFL instead sought limitations on government interference with collective bargaining, such as the dreaded labor injunction wielded by unsympathetic courts. See generally Forbath, Law and the Shaping of the American Labor Movement; Greene, Pure and Simple Politics; Ross, William G., A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890–1937 (Princeton, NJ: Princeton University Press, 1994)Google Scholar.

140. A 1914 spat between the AFL and the WTUL over the Clayton Act also raised tensions between the organizations when Margaret Dreier Robins suggested that Gompers's “magna carta” of organized labor was effectively useless given its drafting. She was right, of course. See Kenneally, Women and American Trade Unions, 80.

141. Robins, Margaret Dreier, “Trade Unionism for Women,” in Woman and the Larger Citizenship, ed. Mathews, Shailer (Chicago: The Civics Society, 1914), 2914Google Scholar. Robins was a staunch believer in the values of fellowship, independence, and self-government that trade unionism provided. Elizabeth Anne Payne, Robins's biographer, argues that the WTUL remained focused on trade unionism under her leadership (which extended until 1922) and then became a legislative pressure group. Elizabeth Payne, Anne, Reform, Labor, and Feminism: Margaret Dreier Robins and the Women's Trade Union League (Urbana: University of Illinois Press, 1988), 100Google Scholar. This account of the timing of the change in strategic orientation of the league conflicts with the arguments of Boone, Dye, Jacoby, Kessler-Harris, and myself.

142. This was the “flower realm” of unions that the WTUL liked to promote. See Jacoby, The British and American Women's Trade Union Leagues, 1890–1925, 25–7.

143. Marot, American Labor Unions, 9.

144. Ibid., 76–7. Citing Gompers, “Woman's Work, Rights and Progress.”

145. Newman, Pauline, “The Workers of the World,” Progressive Woman, May 1912, 7Google Scholar. (emphasis in original) Quoted in Novkov, Constituting Workers, Protecting Women, 165.

146. From New York Times, 3 December 1909. Quoted in Dye, As Equals and as Sisters, 143.

147. Proceedings of the 1915 WTUL Convention, p. 253. Quoted in Jacoby, The British and American Women's Trade Union Leagues, 1890–1925, 130.

148. Letter from Mary Dreier to Melinda Scott, 14 August 1914. Quoted in Ibid., 129.

149. Henry, Women and the Labor Movement, 136.

150. Ibid.

151. For history of the formation of the Women's Bureau and its war-time roots, see Foner, Philip Sheldon, Women and the American Labor Movement, 2 vols., vol. 2 (New York: Free Press, 1980), 50–8Google Scholar.

152. Ibid., 129–35.

153. For a history of the NWP's reinvention, see Cott, Nancy F., “Feminist Politics in the 1920's: The National Woman's Party,” The Journal of American History 71 (1984)Google Scholar; Becker, Susan D., The Origins of the Equal Rights Amendment: American Feminism between the Wars (Westport, CT: Greenwood Press, 1981)Google Scholar; Lunardini, Christine A., From Equal Suffrage to Equal Rights: Alice Paul and the National Woman's Party, 1910–1928 (New York: New York University Press, 1986)Google Scholar.

154. An early version of the ERA stated: No political, civil or legal disabilities or inequalities on account of sex nor on account of marriage, unless applying equally to both sexes, shall exist within the United States or any territory thereof. The version submitted to Congress in 1923 read: Equality of Rights under the law shall not be denied or abridged by the United States or any state on account of sex.

155. The NWP was not opposed to protective labor legislation for all workers. The organization overall was not devoted to free contract ideals. Although they would occasionally find themselves allied with pro-laissez faire business interests in their fight for the ERA and would play a role in the last celebration of Lochner in the Adkins case, it was the gendered Constitution that they objected to, not the welfare reform Constitution. See Cott, “Feminist Politics in the 1920's”; Hart, Bound by Our Constitution.

156. Letter from Ethel Smith to Maude Younger, 11 October 1921. Quoted in Kessler-Harris, Out to Work, 207–8.

157. Kessler-Harris, Gendering Labor History, 85.

158. Bookbinders had found early success unionizing, despite unreliable support by the AFL. See Nutter, The Necessity of Organization.

159. NYWTUL, Organizer's Report to League Meeting, 4 January 1914. Quoted in Lehrer, Susan, Origins of Protective Labor Legislation for Women, 1905–1925 (Albany: State University of New York Press, 1987), 129Google Scholar.

160. For discussion of the labor activism of waitresses in this period, see Cobble, Dorothy Sue, Dishing It Out: Waitresses and Their Unions in the Twentieth Century (Urbana: University of Illinois Press, 1991)Google Scholar.

161. From Life and Labor, Volume 8 p. 275 (December 1918). Quoted in Lehrer, Origins of Protective Labor Legislation for Women, 1905–1925, 129. As will be discussed below, this case would subsequently be appealed to the U.S. Supreme Court and the law upheld in Radice v. New York (264 U.S. 292 [1924]).

162. The WTUL often favored broad classifications in the legislation and regulations it promoted to ensure that they would be robust. Some within the WTUL, such as Mary Van Kleeck who ran the war-time forerunner of the Women's Bureau, attempted to be more sensitive to the needs of those women harmed by the wide reach of protective measures, but this was not representative of the overall approach of the WTUL. See Foner, Women and the American Labor Movement, 52–4.

163. Elizabeth Faulkner Baker, “Protective Labor Legislation, with Special Reference to Women in the State of New York” (Thesis (Ph.D.), Columbia University, 1925), 229.

164. Quoted in Ibid., 190.

165. From New York Times, 18 January 1920. Quoted in Dye, As Equals and as Sisters, 156.

166. Dovi, Suzanne, “Preferable Descriptive Representatives: Will Just Any Woman, Black, or Latino Do?,” The American Political Science Review 96, no. 4 (2002)CrossRefGoogle Scholar.

167. Ibid.: 739. See also Phillips, Anne, The Politics of Presence (New York: Oxford University Press, 1995)Google Scholar.

168. Appeared in Industrial Equality, 8 January 1923. Quoted in Lehrer, Origins of Protective Labor Legislation for Women, 1905–1925, 163.

169. Letter from NYWTUL to C. Solomon, 15 February 1919. Quoted in Ibid., 130–1.

170. Dye, As Equals and as Sisters, 158.

171. Lehrer, Origins of Protective Labor Legislation for Women, 1905–1925, 129–30.

172. For further discussion see Baker, Elizabeth Faulkner, “At the Crossroads in the Legal Protection of Women in Industry,” Annals of the American Academy of Political and Social Science 143 (1929)CrossRefGoogle Scholar.

173. Lehrer, Origins of Protective Labor Legislation for Women, 1905–1925, 168–83. See also Kessler-Harris, Gendering Labor History, 49.

174. Letter from Fannia Cohn to Dr. Marion Phillips, 13 September 1927. Quoted in Foner, Women and the American Labor Movement, 142. Cohn was one of the few leading women from the ILGWU who worked with the WTUL who did not eventually peel away from the union to work full time for the WTUL.

175. Cobble, The Other Women's Movement, 61.

176. As this article has demonstrated, the motivations women held for fighting for and against the ERA ranged from the instrumental to the ideological, just as had been the case when the NCL, WTUL and other groups adopted a maternalist policy program. Part of what makes the cross-class WTUL a useful vehicle for studying this period is its ability to draw attention to the varied values and interests of activist women during this era, illustrating the difficulty in authoritatively ascribing a particular set of values or agenda to women as a whole.

177. 243 U.S. 629 (1917). Brandeis, now a member of the Supreme Court, recused himself.

178. 261 U.S. 525 (1923).

179. 261 U.S. 525, 554, 546.

180. 261 U.S. 525, 553.

181. Felix Frankfurter to Jesse Adkins, 16 April 1923. Quoted in Hart, Bound by Our Constitution, 130. For a cogent discussion of the effect of legal/constitutional discourse on the shape of the battle between Paul and equality feminists and Florence Kelley and social feminists, which is highlighted in Adkins, see Zimmerman, Joan G., “The Jurisprudence of Equality – the Womens Minimum-Wage, the 1st Equal-Rights-Amendment, and Adkins V. Childrens Hospital, 1905–1923,” Journal of American History 78 (1991)CrossRefGoogle Scholar. See also Hart, Bound by Our Constitution, 130–50.

182. Since Adkins addressed federal authority, state wage laws were not immediately invalidated. That shoe apparently finally dropped in Morehead v. New York ex rel Tipaldo (298 U.S. 587 [1936]), which cited Adkins but left room to revisit the issue. Of course, it was only one year later when the Supreme Court did revisit the issue and execute its New Deal about-face on the minimum wage for women in West Coast Hotel. In the intervening years between Adkins and Morehead, minimum-wage laws held in some states and were even passed in others, but the campaign had been critically curtailed.

183. 264 U.S. 292 (1924).

184. Baer, The Chains of Protection, 97.

185. Cobble, The Other Women's Movement.

186. Foner, Women and the American Labor Movement, 275–6.

187. 300 U.S. 379, 391.

188. 312 U.S. 100 (1941). This case validated the FLSA and dealt with federal authority rather than the state police power. However, it was understood to endorse state power as well.

189. 335 U.S. 464, 465 (1948). The opinion was authored by progressive and one-time NCL brief-writer Felix Frankfurter. Clearly not all of Florence Kelley's past allies accepted maternalism only instrumentally. See also Lipschultz, “Social Feminism and Legal Discourse: 1908–1923.”

190. See Hart, Bound by Our Constitution; Mettler, Dividing Citizens; Storrs, Landon R. Y., Civilizing Capitalism: The National Consumers' League, Women's Activism, and Labor Standards in the New Deal Era (Chapel Hill: University of North Carolina Press, 2000)Google Scholar.

191. The Supreme Court accepted the commerce clause argument of the federal government to legislate labor standards and validated the act in Darby.

192. For a full study of the gendered (and federalism) implications of the FLSA, see Mettler, Dividing Citizens. According to Mettler, structurally, the FLSA was grounded in the commerce clause, and bureaucrats and legislators were cautious to exempt any seemingly intrastate commercial activity in order to avoid testing the boundaries of the revolution in the Supreme Court's constitutional interpretation. Politically, women still had not exerted themselves as a voting bloc, and SMOs working on their behalf were preoccupied with maintaining state-level regulations. For a study of the NCL's engagement with the FLSA, see Storrs, Civilizing Capitalism.

193. A further gender cruelty of the FLSA was that it required overtime pay for hours worked in excess of the statutory limits. However, state hours laws that covered only women prohibited them from accepting excess hours at all. Employers preferred paying a wage premium to increasing their workforce or extending the time for production, thus preventing women from benefiting. See Mettler, Dividing Citizens.

194. Ritter, The Constitution as Social Design, 135–73.

195. 301 U.S. 1 (1937).

196. This was one of the additional ironies of the initial FLSA, that it protected principally manufacturing workers, who by and large (at least those in craft unions) could do better on their own with the collective bargaining power they had contemporaneously been given.

197. Cobble, The Other Women's Movement. Cobble has referred to this period following the activism of groups like the WTUL in the 1920s and 1930s as “the missing wave” of women's labor activism. Cobble identifies the 1960s as an important subsequent period of development for the labor power of women with the founding of the President's Commission on the Status of Women (PCSW) and the passage of the Civil Rights Act of 1964. This was the period of “labor feminism at high tide.”

198. The labor Constitution, of course, now represented something quite different from Gompers's collective free contract vision. Whatever the content of this constitutional vision, the key for working women as always was to be integrated into unions where hard-won labor concessions would be open to them on equal terms with their brothers in the labor movement.

199. I do not mean, in pointing out the negative fallout of the gendered Constitution, to imply that it was a dishonor. These progressive labor reforms enabled by Muller greatly reduced the misery of exploited women workers at that time.