Competing Social Constructions of Women Workers In Lochner-Era Judicial Decision-Making

Abstract

Ronald Kahn has argued that the social construction process, which embeds social realities outside the court in legal doctrine, can lead to more rights-protective constitutional interpretations, even during conservative eras. However, especially when particular groups are the subject of multiple or competing social constructions, the social construction process may not always lead to rights-expansive outcomes for disadvantaged groups. From the late 1800s through 1937, state and federal courts struggled to fit women workers into changing legal conceptions of the “right to contract.” Across numerous cases, courts vacillated between two competing social constructions of women workers: women as vulnerable victims in need of special state protections, and women as independent economic actors who were qualified to make their own workplace decisions. Ultimately, social constructions that provided important workplace protections for women workers before 1937 became embedded in legal doctrine in ways that limited their economic and civil equality for decades afterward.