Sex and substantive due process: The gendered nature of constitutional development, 1873-1937.

This dissertation explains the gendered historical and constitutional roots of West Coast Hotel Co. v. Parrish. This 1937 Supreme Court case gave rise to the modern welfare state by allowing the states and federal government to regulate the economy without having to fear that the courts would invalidate their policies. Throughout the late nineteenth and early twentieth centuries, US courts largely opposed legislative attempts to improve the terms and conditions of labor for employees, striking down protective measures. The most notable example, the Supreme Court's ruling in Lochner v. New York, is often described as a disastrous attempt by the Justices to impose their conservative views nationally. In such interpretations, West Coast Hotel is a watershed moment and the beginning of a new constitutional era, rejecting the misguided reasoning of Lochner. This dissertation sees West Coast Hotel instead as the end of a developmental process dependent on the role that gender played in US court cases on protective labor legislation. While courts often invalidated generalized protective legislation, they frequently upheld such legislation for women. This dissertation explores the reasoning in the cases decided between 1873 and 1937. It examines the use of substantive due process, the protection of substantive liberties under the Fourteenth Amendment's and parallel state constitutional provisions that life, liberty, or property may not be taken away without due process of law. By analyzing materials from the women's movement, briefs filed in the US Supreme Court, and all reported opinions on the state and federal level, the study demonstrates that considerations of cases involving women's measures ultimately came to drive the development of doctrine. As the legal community established the default position that general legislation was invalid, its members focused their attention on laws affecting women, using this issue as an analytical space in which to work out the arguments for and against regulation. While legal scholars have focused principally on the tension between due process and police power, this work demonstrates that a shift in focus from labor to laborers and from gendered to facially gender-neutral arguments grounded the reasoning and outcome in West Coast Hotel.Ph.D.American historyLawPolitical scienceSocial SciencesWomen's studiesUniversity of Michigan, Horace H. Rackham School of Graduate Studieshttp://deepblue.lib.umich.edu/bitstream/2027.42/131500/2/9909957.pd