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please email [email protected]. THE STRENGTH AND VIGOR OF THE RACE: CALIFORNIA LABOR LAW AND RACE PRESERVATION IN THE PROGRESSIVE ERA

Thomas William O'Donnell B.A., University of California, Berkeley 1999

THESIS

Submitted in partial satisfaction of the requirements for the degree of

MASTER OF ARTS

1ll

HISTORY

at

CALIFORNIA STATE UNIVERSITY, SACRAMENTO

SPRING 2009 THE STRENGTH AND VIGOR OF THE RACE: CALIFORNIA LABOR LAW AND RACE PRESERVATION IN THE PROGRESSIVE ERA

A Thesis

by

Thomas William O'Donnell

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'------..,0::------,--..~=="""""'--'' Committee Chair RI oecca M. Kluchin, P .D.

'---=====-.~~=i=!------' Second Reader Charles Postel, Ph.D. ~ /fJ"'/oq Date· 1

11 Student: Thomas William O'Donnell

I certify that this student has met the requirements for fonnat contained in the University

fonnat manual, and that this thesis is suitable for shelving in the Library and credit is to

be awarded for the thesis .

. "..-==~--=====:~!!:::::= ~ 'Graduate Coordinator ,Aa,,t,£-- {,/ ~ -Mona Siegel, Ph.D.CJ Date --r-

Department of History

111 Abstract

of

THE STRENGTH AND VIGOR OF THE RACE: CALIFORNIA LABOR LAW AND RACE PRESERVATION IN THE PROGRESSIVE ERA

by

Thomas William O'Donnell

In 1911, California's Progressive legislature passed an act that limited a woman's working day in certain occupations to eight hours. The courts upheld the California Woman's Eight­ hour Bill on the grounds that a woman's role as the mother of succeeding generations was an objective of central importance to the state, which therefore justified a restriction of her employment. To protect the "strength and vigor of the race," court opinions and supporters of labor laws for women articulated a justification that was influenced by and used the lan­ guage of the eugenics movement. The emphasis eugenicists placed on the meaning of motherhood and regulating reproduction, the importance ofracial progress, and a belief that an unhealthy environment could have negative hereditary consequences were central ideas in the debate over restrictive labor legislation for women.

- ...... --- - - ~-----~' Committee Chair cca M. Kluchin, Ph.D.

5/s/a"t Date

lV ACKNOWLEDGMENTS

Over the past two years-which to my mind has all been in preparation for the completion . ofthis project-I have received the support, encouragement, and guidance ofmany people.

Professor Erika Gasser has been my teaching mentor for nearly as long as I have been at Sacramento State. She has provided twice-weekly reminders of why I am pursuing a graduate degree.

Fellow graduate students Jordan Biro and Chelsea Del Rio have read or listened to almost every crazy idea that went into this project and always found something they liked and of­ fered suggestions for what they did not. There was no one else I could count to reply to an e-mail at all hours ofthe day about an impending breakdown with humor and perspective.

The unfailing support ofmy family and my wife's family to help watch two young children while I locked myself away for days at a time was always offered before it was asked. They never expressed a moment's doubt and they have cheered, prayed for, and sustained me every step of the way.

There are two people that deserve special recognition above all others: my advisor, Dr. Rebecca Kluchin and my wife, Julie O'Donnell. Nothing was possible without them. Before I had even sat in a classroom Becky offered guidance that has profoundly shaped my approach to history and graduate study. Her uncompromising expectations provided the environment that has made me a stronger writer and a better historian. Her example is one that I might never equal, but because of her it is one that I will never stop trying to match.

My wife has been my partner for seventeen years. The desire to deserve her affection inspires every effort I make to be successful. "All you need is love."

My success reflects little more than the support that made it possible.

Vl TABLE OF CONTENTS Page

Dedication ...... v Acknowledgments...... vi List of Tables ...... viii List of Figures ...... -...... ix Chapter 1. INTRODUCTION ...... 1 2. PROGRESSIVISM AND EUGENICS ...... 6 Industry and Labor Law in the Progressive Era ...... 10 Eugenic Solutions ...... 14 3. EUGENICS AND LABOR LAW ...... 41 Shared Cultural Values ...... 43 Workers and Eugenics ...... 49 Eugenic Philosophies in Labor Law ...... 57 4. THE CALIFORNIA WOMAN'S EIGHT-HOUR LAW ...... 67 Hours Laws and Race Preservation before 1915 ...... 67 The California Woman's Eight-hour Law and Case ...... 78 5. CONCLUSION...... 89 Bibliography ...... 91

Vll LIST OF TABLES Page

1. Operations for Eugenic Sterilization Performed in State Institutions ...... 29

Vlll LIST OF FIGURES Page

1. The Distribution of Genius and Feeblemindedness ...... 51

2. Ward's Revised Population Distribution ...... 52

3. Alexander Graham Bell's Makeup of the Human Race ...... 53

lX 1

Chapter 1

INTRODUCTION

On the evening of February 16, 1911, at a packed hearing before the California

Senate's Committee on Labor, Capital and Immigration, Mrs. Hannah Nolan testified that long working hours for women was ''the greatest evil-doer to woman's health and is directly responsible for race suicide." Nolan spoke from her sixteen years of personal experience as a laundry worker that began at the age of fourteen. As the Senate committee took up the debate on a proposed eight-hour labor law for women, she and other working girls rallied to its support. A front-page account of the proceedings in The Sacramento Bee the following day summarized the purpose of the measure according to its supporters as "preserving the health ofthe future mothers ofthe race in California."1

The California Woman's Eight-hour Labor Law, passed that year by the state's newly elected Progressive legislature, was upheld by the ·united States Supreme Court in 1915 as a legitimate means to protect the reproductive health of women. A woman's role as the mother of succeeding generations became a subject of central importance to the supporters of labor reform during the Progressive Era. That justification was consonant with arguments made by the eugenics movement that enjoyed widespread support and application in the early twentieth century. Eugenicists advocated the practice of regulating fertility and applying the laws of heredity to check racial degeneration and to breed a nation of citizens suited to the challenges ofmodem civilization. This thesis argues that those principles of eugenics, which emphasized

1 "Women ask for short hours," The Sacramento Bee, February 17, 1911. 2 the fitness of mothers, influenced and justified labor laws that restricted a woman's freedom ofcontract.

Labor and gender historians have typically explained the legislative and judicial support of women's labor laws with a variety of political, economic, social, and biological arguments. Judith Baer, points to each one of those categories in varying degrees in her feminist-inspired book from 1979, The Chains ofProtection.2 Likewise, Theda Skocpol in her work, Protecting Soldiers and Mothers, and Alice Kessler-Harris in Out to Work, as well as most ofthe existing scholarship, describes the circumstances ofwomen's labor legislation that emphasize one or more ofthese basic factors. 3

Political explanations point to government intervention on behalf of women workers due to the difficulties they faced organizing into unions, which were instnmental in negotiating improved working conditions for male members, or the handicaps that accompanied their inability to vote. It has also been suggested that the courts' resistance to laws that protected male workers, in the name of contract liberty, convinced legislators that only laws which covered women would pass judicial scrutiny. Economic arguments explain the laws as attempts (supported primarily by unions) to undercut the competition of women for jobs by limiting their appeal to employers due to the laws' constraints or, conversely, win

2 Judith A. Baer, The Chains ofProtection: The Judicial Response to Women's Labor Legislation (Westport: Greenwood Press, 1978), 23. 3 Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge: Belknap Press of Harvard University Press, 1992), Chapter 7; Alice Kessler-Harris, Out to Work: A History ofWage-Earning Women in the United States (New York: Oxford University Press, 1982), Chapter 7. 3 similar gains for men by forcing employers to adjust the hours of operation for an entire workforce to match the legal limits oftheir female employees.

The social and physical factors offer a set of explanations that come closest to the principles of eugenics. Socially, the argument holds that a woman's role as wife or mother required her full attention and exertions towards the duties that accompanied those ,responsibilities. Physically, a woman was weaker and her biological capacity

(unequivocally a duty and inseparable from her social role) to bear children made her less fit for wage labor. The purpose of eugenics was predicated on the physical and in­ tellectual growth of future generations that required a healthy mother devoted to her duty to the race. It is curious then that historians have not connected eugenics with ex­ planations for labor laws that point to a woman's biological function and social respon­ sibilities-rhetoric that reverberates throughout eugenics.4

In part that omission may be because such an argument brings together what has largely been two widely separated historiographical traditions. The protective labor laws of the Gilded and Progressive Era's have remained the provenance of legal and labor historians, despite the incorporation of a gender analysis that has focused extensively on the meaning of motherhood to complement the economic and political rationales.

Whereas scholars of eugenics tend to focus on the movement's intellectual development and around broader issues of race and class. And it has only been in recent years that

4 One notable exception is the work of Thomas C. Leonard who has written multiple articles on the influence of eugenics in economic and labor reforms during the Progressive Era. See for example, "Protecting Family and Race: The Progressive Case for Regulating Women's Work," American Journal ofEconomics and Sociology 64, no. 3 (2005): 757-91. I -

4

studies of the scientific solutions to social problems emphasized by eugenics have

moved beyond the "most extreme expressions of race improvement" to reveal the extent

to which it found favor among a diverse and respected audience in society. 5 This thesis,

which ties labor laws for women to eugenics by the thread of a shared vision for society,

does not necessarily refute previous explanations for those laws. In fact, it reinterprets

and reinforces the social and physical explanations. The incorporation of eugenics com­

plements previous explanations used to describe the acceptance of labor laws by high­

lighting the role a woman's reproductive potential played in the nation's future.

Chapter 1 describes the context of the Progressive Era and examines the theories

and deployment ofeugenic thought during these years. The circumstances of industriali­

zation in the United States provide a background for the unique responses it engendered.

The living and working conditions factory workers endured defined many of the prob­

lems faced by society including an unhealthy environment driven by earnings and mar­

gins at the cost of comfort and safety, a workforce increasingly composed of nonwhite

male laborers, and wages below subsistence. Eugenics provided explanations and reme­

dies for the frightful pace of degeneration many observed. By appealing to a growing

confidence in science and technology (ironically, the same agents that worsened condi­

tions), eugenics seemed to offer reformers, politicians, and judges a solution that would

strike at the root of most social troubles.

5 Frank Dikotter, "Race Culture: Recent Perspectives on the History of Eugenics," The American Historical Review 103, no. 2 (1998): 467. 5

Chapter 2 looks in detail at the specific values that labor laws and eugenics shared.

Tue connection between eugenics and labor laws for women is primarily a cultural one. Ideas such as the meaning of motherhood, the importance of progress, and the authority of science were so ingrained in the patterns of life that an exchange of ideas was unavoidable. This

·chapter describes those tenets of eugenics that, contrary to general knowledge, endorsed efforts to improve living or working conditions as a means to improve hereditary health.

Finally, Chapter 3 is a "eugenically informed" analysis of the California Woman's

Eight-hour Labor Law and the judicial precedents that trace the existence ofrace preservation arguments in other state labor laws for women.6 The enunciation offears about "race suicide" and an idealization of motherhood is sustained in the state courts and then canonized in constitutional law in the case ofMiller v. Wilson (1915), which upheld the California law.

Tue explanations historians accept to understand the justification for abridging a woman's constitutional right to engage in work on terms equal with men is incomplete.

Lawmakers and judges based their support of a restriction on the number of hours a woman could work in a day on more than just a fear by organized labor ofeconomic competition or efforts by men to assert patriarchal control over the family. The broader historical context, which included powerful cultural influences such as eugenics, cannot be disconnected from explanations that seek to isolate agents of cause and effect. Eugenics helps explain how supporters oflabor laws for women understood the significance ofa rationale that claimed to be in the interest ofthe "strength and vigor ofthe race."

6 Thomas C. Leonard, "American Economic Reform in the Progressive Era: Its Foundational Beliefs and Their Relation to Eugenics," History ofPolitical Economy 41, no. 1 (2009): 110. 6

Chapter 2

PROGRESSIVISM AND EUGENICS

In the spirit of progress and uplift, reform movements ofthe early twentieth cen­ tury attempted to solve many of society's worst problems. The advances in technology and wealth created during the Gilded Age did not benefit all Americans equally. In the

Progressive Era that followed, reformers used the newest methods of social science arid with the help ofgovernment oversight attempted to alleviate some of the problems asso­ ciated with the rapid expansion of industrialization, a massive wave of immigration, and urban migration.

The rapid expansion of industry during and after the Civil War was integral to many of the changes and anxieties in society by the turn of the century. Between 1859-

1869, the number of factories in the United States had nearly doubled and in the decade C following the war, the amount of money invested in manufacturing had more than quad­ rupled. 1 An unprecedented wave of immigration provided the workers for new factories and became the residents of populous urban centers. The population in the United States more than doubled between 1880-1920 from about 50 million to over 105 million;

Between 1900-1915 alone more than 15 million immigrants landed on American shores.

During that same forty year period in California, a leading state in terms of its own

1 Sven Beckert, The Monied Metropolis: New York City and the Consolidation of the American Bourgeoisie, 1850-1896 (Cambridge, UK: Cambridge University Press, 2001), 145. 7

population and manufacturing growth, the population almost quadrupled from less than

1 million to over 3 million. 2

Further exacerbating social tensions were the challenges to traditional gender

roles exemplified by an increase in the number of women attending college, the

women's suffrage movement, and a significant surge in women's workforce participa­

tion. Combined, these issues presented a "confluence" of demands and circumstances

that "raised anxieties [about] the future."3 The social reform movements of the Progres­

sive Era attempted to address these (and many other) problems of modem society.

During this same period, eugenicists seized upon that spirit of progress and uplift

and attempted to apply the ideas of race improvement through selective breeding. By

encouraging the "fit" citizens in society-determined by race, wealth, or intellectual

achievement-to form· marriages and procreate, and impeding the reproduction of the

feebleminded or "unfit," society would be better prepared to overcome many of the ob­

stacles they presently faced. Many observers blamed those consequences of moderniza­

tion for what appeared to be a dysgenic process of hereditary degeneration caused by the

unchecked reproduction of "undesirable" individuals combined with a decrease in the

2 U.S. Department ofthe Interior Census Office, Statistics ofthe Population ofthe United States at the Tenth Census (Washington DC: Government Printing Office, 1881 ), 3; U.S. Department ofCommerce Bureau ofthe Census,Fourteenth Census ofthe United States taken in the Year 1920, Volume Ill: Population (Washington DC: Government Printing Office, 1922), 2; Library of Congress, "Immigrants in the Progressive Era," · http://lcweb2.loc.gov/learn/features/timeline/progress/immigmt/immigmt.html (accessed April 9, 2009). 3 Margaret S. Marsh and Wanda Ronner, The Empty Cradle: Infertility in America from Colonial Times to the Present (Baltimore: Johns Hopkins University Press, 1996), 77. 8

birth rates of "old stock" and "native" Americans.4 In an effort to preserve and improve the American race, many states such as California implemented a range of eugenic so­

lutions from sterilization to marriage counseling.

At the turn of the century, modern cities were awash in subhuman living condi­ tions. The poorest residents were overcrowded in tenements, surrounded by filth due to

poor sanitation, and lacking access to adequate nutrition and education. The need for

unskilled workers to assemble, stamp, stitch, and operate the machinery of the econ­

omy's new engine was insatiable. Wages were pressed downward by a newly arrived

labor force eager for employment and working conditions worsened as the profit motive

and fierce competition sacrificed worker safety to market demands. The efforts by re­

formers, social and biological scientists, and government officials to mitigate these poor

living and working conditions took many different forms. Often the preferred solution

was "state intervention and regulation."5 As industries became more economically and

politically powerful and company management felt less obliged to look after their em.:

ployees' welfare, reformers increasingly turned to the state for protection.

One response designed to protect workers from unsafe conditions and exploita­ tion by employers was labor legislation. Although workingmen were sometimes subject

4 Theodore Roosevelt, "Race Decadence," The Out/ook97 (April 8, 1911): 763, spoke ofAmericans in terms of"new" and "old stock." Ethel Wadsworth Cartland, "Childless Americans," The Outlook 105 (November 15, 1913): 585, referred to herself by "what is called native American stock (which in my particular case means English and Scotch immigrants of 1635)." 5 Wendy Kline, Building a Better Race: Gender, Sexuality, and Eugenics from the Turn ofthe Century to the Baby Boom (Berkeley: University of California Press, 2001), 13. 9 to regulation in particularly unsafe industries such as mining, "protective laws· covering adult male workers made little headway" and most effort was directed towards protecting workingwomen.6 These laws typically limited the number of hours a woman in certain occupations could work in a day or week, the hours of the day permitted for work, or provided special accommodations such as restrooms or the use of seats when they were not "engaged in the active duties of their employment."7 Advocates of labor laws and the judges that upheld them stressed the role of women in the improvement and preservation of the race. Court opinions cited a woman's "physical structure and a proper discharge of her maternal functions" to justify legal limitations on her right to work. "The physical wellbeing of woman," asserted Supreme Court Justice Brewer in the landmark labor law case of Muller v. Oregon (1908), "becomes an object of public interest and care in order to preserve the strength and vigor of the race."8 The language, values, and gender roles

Brewer asserted in that decision were both Progressive and eugenic.

This chapter will examine the social context that justified Progressive Era labor laws and the ideology and practice of eugenics to demonstrate the compatibility between social reform and race improvement. There is a well-documented exchange of ideas between various Progressive Era reformers and eugenicists on such issues as immigration, miscegenation, and public health so it should come as no surprise that those same powerful ideas would be brought to bear on one ofthe era's leading concenrwomen's employment.

6 Skocpol, Protecting Soldiers and Mothers, 373. 7 Cal. Stats. p. 437 (1911). 8 Muller v. Oregon, 208 U.S. 412 (1908). Industry and Labor Law in the Progressive Era

Although the United States began to industrialize at least as early as the 1820s with

I the construction of the Lowell mills in Massachusetts, it was not until after the Civil War that the modem problems of industry began to attract organized resistance from reformers.

Many were fearful of the growing concentration of wealth in the hands of a few industrialists. New factories attempted to consolidate previously independent artisans and craftsmen into a deskilled and docile wage force. That effort increasingly forced women out of traditional domestic roles to earn the money necessary to purchase consumer goods no longer made at home or to meet even a bare level of subsistence.9 The effects of industrialization were felt by "virtually every man, woman, and child in America."10

The pressures of industrial capitalism that reshaped the demography and social structures ofthe nation are central to the significance of this period. Urban areas such as

New York City, San Francisco, and Chicago witnessed phenomenal growth in popula­ tion and manufacturing. In Chicago in 1890, for example, first and second-generation immigrants accounted for over three-quarters of the total population, which itself had more than doubled during the previous decade. Furthermore, "also indicative of national trends," almost one half of the population by the end of the century was employed in

9 Kessler-Harris, Out to Work, 109-112, 120. 10 Richard L. McCormick, "Public Life in Industrial America, 1877-1917," in New American History, ed. Eric Foner (Philadelphia: Temple University Press, 1990), 107. 11

"manufacturing and mechanical trades" and women represented nearly one-third of that working class-a four-fold increase in twenty years. 11

Florence Kelley, the head of the National Consumers' League, described the changes wrought by industry as an "invasion." The factory operators' insatiable appetite for cheap labor pried open the family's front door to leave piecework and then, when that was not enough, pushed women and children from the home into a factory. Kelley lamented, "never before on so great a scale have working people's homes been invaded by industry in the sense that it entices away those who belong in the home and not in industry."12 The long hours of a worker's day, sometimes as many as fourteen or six­ teen, surrounded by machinery and conditions which placed the health and life of an employee in constant danger, was the impetus for the type of laws that limited the num­ ber of working hours in a day. Accordingly, advocates of labor laws invoked the state's police power as a justification for protecting the public welfare. Reformers of the Pro­ gressive Era relied heavily on the authority of the state to enact and enforce laws for the protection of workers but that did not mean all women and all races. 13

Approximately six million or one-quarter of all wage earners nationwide in 1900 were women (out of a total of thirty-seven million women in the U.S.); forty percent of those workers were either first or second-generation immigrants and twenty percent were

11 Robyn Muncy, Creating a Female Dominion in American Reform, 1890-1935 (New York: Oxford University Press, 1991), 11-12. 12 Florence Kelley, "The Invasion of Family Life by Industry," Annals ofthe American Academy ofPolitical and Social Science 34, no. 1 (July 1909): 90. 13 Melvin I. Urofsky, "State Courts and Protective Legislation during the Progressive Era: A Reevaluation," The Journal ofAmerican History 72, no. 1 (1985): 66. 12

14 African Americans. . The biggest percentage change that occurred in the composition of the workforce at the turn of the century was the number of married women that entered into paid work. 15 Women were having fewer children, which increased the number of years they might spend working for wages. Advocates of race preservation claimed that these married women, many of who were in their prime childbearing years, were re­ sponsible for the declining birth rate among the types of women who should be enlarg­ ing their family (and the nation) rather than working.

Roughly one-quarter of the female wage earners nationwide at the turn of the century would have been subject to hours and night work restrictions. 16 By 1930, as the number of states that had such laws expanded, they covered one-third of the women in the work force. 17 These women were typically very poor and engaged in wage labor out of the necessity to supplement a husband's income that was not adequate to afford the minimum standards of living. 18 Most of the restrictive labor laws specifically excluded large portions of working class women. The two largest groups of women most laws exempted were domestic and agricultural workers. A third group were those with white-

14 Alice Kessler-Harris, In Pursuit ofEquity: Women, Men, and the Quest for Economic Citizenship in 20th-Century America (Oxford: Oxford University Press, 2001), 25; U.S. Department ofthe Interior, Bureau ofthe Census, Twelfth Census ofthe United States, 1900 (Washington, DC: Government Printing Office 1901), 484. 15 Kessler-Harris, Out to Work, 109. Nancy F. Cott, The Grounding ofModern Feminism (New Haven: Yale University Press, 1987), 129. 16 Cott, The Grounding ofModern Feminism, 130. 17 Ann Corinne Hill, "Protection of Women Workers and the Courts: A Legal Case History," Feminist Studies 5, no. 2 (Summer 1979): 249; Kessler-Harris, In Pursuit ofEquity, 32. 18 Kessler-Harris, Out to Work, 120-122. 13 collar, "professional" jobs often held by college-educated women. 19 There was certainly a racial aspect to these exclusions. Most non-white~ wage-earning women were concentrated in domestic service and agriculture (and its related industry, food processing). For example, of those African American women in the labor force, "three quarters found jobs as farm laborers, laundresses, or domestic servants" in the early twentieth century. 20 Women who were hired to work in the fields harvesting the various products for canning "were most often women of color, Latinas, or the most recent immigrants, who were seen socially almost as people ofcolor."21

In California, the percent of wage-earning women and those who would have been subject to hours laws was roughly equivalent to the national averages. In the

Fourteenth Biennial Report by the California Bureau of Labor Statistics for the years

1909-1910, the number of women engaged in manufacturing in the state's three largest cities, San Francisco, Los Angeles, and Oakland, the percentage of women was 20.7,

20.7, and 23.8 respectively.22 Whereas in the east, black women comprised the largest percentage of domestic workers, in California it was the Chinese who were most commonly employed as domestic help.

Due to a lack of enforcement and oversight, many of the laws that states passed with the intent ofprotecting women were practicably symbolic. However, the arguments

19 Kessler-Harris, In Pursuit ofEquity, 32. 20 Ibid., 43. 21 Julie Novkov, "Liberty, Protection, and Women's Work: Investigating the Boundaries between Public and Private," Law & Social Inquiry 21, no. 4 (Autumn 1996): 877. 22 California Bureau of Labor Statistics, Fourteenth Biennial Report (Sacramento, 1910), 122-3. 14 and rhetoric used to defend labor laws had a significance that outweighed the number of women they actually covered. These laws were debated in the chambers of state legis­ latures, cross-examined in the highest courts, and published in newspapers and books. It was common nationwide, in fact, for the enforcement mechanism of labor laws for women to be so weak that they were easily skirted. In her investigation into California's

1889 law that required factories to be in a "sanitary condition, and properly ventilated,"

Lucile Eaves did not find any evidence of "a prosecution for the failure to comply with the laws, though undoubtedly there have been many violations. "23

· In an era when it was more likely for courts to uphold the rights of wealthy cor­ porations to conduct business as they saw fit, protective labor laws for women found near unanimous judicial consent. In large measure, the validity of hours laws was based on the reproductive role of women as mothers. As will be shown in more detail in chapter two, the deeply held beliefs about the proper role of women in society justified an abridgement of their right to work. Those same beliefs, combined with a burgeoning faith in science and a desire for racial progress, is_the context that united eugenic thought with labor laws.

Eugenic Solutions

The science, ideas, and language of eugenics found adherents, a home, and a labo­ ratory in the United States during the early twentieth century. The hope promised by a theory of race improvement struck a chord with many in America at a time when a belief

23 Lucile Eaves, A History ofCalifornia Labor Legislation with an Introductory Sketch ofthe San Francisco Labor Movement (Berkeley: The University Press, 1910), 316. 15 in the "progress" of civilization clashed with fears of its "degeneration." The social problems that were a result of industrialization led many reformers to look, "not to re­ ligion but to science, which offered authority, rationality, and incisive explanatory power."24 A scientific approach to society's problems reflected many of the same values such as technical expertise and efficiency that Americans admired in industry. "Within this context, the American eugenics movement emerged as a significant force" that shaped the debates over foreign policy, gender roles, and government-controlled social reforms. 25

In a speech given to the Sociological Society at London University in 1904, the founder of eugenics, Sir Francis Galton (1822-1911 ), described it as the "science which deals with all influences that improve the inborn qualities of a race; also with those that develop them to the utmost advantage."26 Galton first proposed the substance of eugen­ ics as early as 1865 in a two-part article, "Hereditary Talent and Character." There he argued, "that talent is transmitted by inheritance in a very remarkable degree. "27 His study, drawn from published encyclopedias and biographies, attempted to identify "men of genius" and their relation to one another. In one source of biographical data, for ex­ ample, Galton identified 605 notable men who lived between 1453-1853 and "among these are no less than 102 relationships, or 1 in 6."28 The purpose of his systematic study

24 Alexandra Minna Stern, Eugenic Nation: Faults and Frontiers ofBetter Breeding in Modern America (Berkeley: University of California Press, 2005), 13. 25 Kline, Building a Better Race, 13. 26 Francis Galton, "Eugenics: Its Definition, Scope, and Aims," The American Journal ofSociology 10, no. 1 (July 1904): 1. 27 Francis Galton, "Hereditary Talent and Character," Macmillan's Magazine 12 (1865): 157. 28 Ibid., 159. 16 was to prove a correlation between character, achievement and heredity. Galton believed that besides "mere intellectual capacity," men (and women) of eminence passed to their progeny "many points of character" including "a love of mental work, a strong purpose, and considerable· ambition."29 He concluded there was a purely biological correlation between heredity and talent in which neither achievement nor failure "depended upon social circumstance."30 "If a twentieth part of the cost and pains were spent," Galton logically concluded, "in measures for the improvement of the human race that is spent on the improvement of the breed of horses and cattle, what a galaxy of genius might we not create! "31

The challenges and possibilities of modem society motivated Galton to examine the connections between heredity and talent. He witnessed the "feeble nations of the world ... giving way before the nobler varieties of mankind" as European nations colo­ nized the African and Asian continents. Even within those higher civilizations, however,

"the foremost minds...seem to stagger and halt under an intellectual load too heavy for their powers." Modem civilization was increasingly complex and the untapped potential of science and culture required a nation of men with the intellectual capacity to fully embrace it. Man's increasing mastery over the natural world using science was the model Galton drew from for his own course of improvement. Why, he asked, was it not reasonable to apply that same scientific ethos to the improvement of man as well. "We

29 Ibid., 318. 30 Daniel J. Kevles, In the Name ofEugenics: Genetics and the Uses ofHuman Heredity (Cambridge: Harvard University, 1995), 4. 31 Galton, "Hereditary Talent and Character," 165. 17 want abler commanders, statesmen, thinkers, inventors, and artists" to be the leaders ofa new civilization he argued. 32

Besides breeding a race of geniuses to meet the challenges of a new age of hu­ man achievement, Galton and his followers were also concerned with the obverse ofthat equation: degeneration, "a term imbued with both scientific and moral meaning. "33 The danger of civilization, he perceived, was the tendency it had "to diminish the rigour of the application ofthe law of natural selection. It preserves weakly lives, that would have perished in barbarous lands."34 Artificial barriers to natural selection interposed by mod­ em civilization, "checked or even reversed" the process that eliminated the weak, ill­ adapted, or "unfit."35 Exacerbating concerns over unchecked reproduction of the unfit, was a decline in birth rates in Western Europe and the United States among the types of people Galton considered among the "fit." 36 Karl Pearson (1857-1936), a protege of

Galton's and a pioneer of mathematical statistics, feared that the British population was in a state of decline brought about by a decrease in reproduction of the "cultured classes" and an increase by the "socially worst."37 To a large degree, eugenics "was sown in the soil ofdegenerationism. "38

32 Ibid., 166. 33 Stem, Eugenic Nation, 13. 34 Galton, "Hereditary Talent and Character," 326. 35 Diane B. Paul, Controlling Human Heredity, 1865 to the Present (Atlantic Highlands, N.J.: Humanities Press, 1995), 6. 36 Stem, Eugenic Nation, 13. 37 Kevles, In the Name ofEugenics, 33; Paul, Controlling Human Heredity, 7. 38 Stem, Eugenic Nation, 14. 18

Two important intellectual ideas that engaged widespread attention during the last quarter of the nineteenth century and are relevant to a discussion of eugenics and social reform are neo-Lamarckism and Mendelianism. Jean Baptiste de Lamarck (1744-

1829) advanced a theory of"acquired characteristics" that suggested physical changes in a person during their lifetime could be inherited by their subsequent children. The clas­ sic example is that of a giraffe that stretches its neck to reach the leaves in a tree then passed along a longer neck to its offspring. Acquired characteristics translated into a be­ lief that an improvement in the quality or cleanliness of a population's environment "in education, housing, and public health" would have positive eugenic consequences. 39

Mendelianism on the other hand, countered the argument that one's environment had an effect on heredity. In 1856, Gregor Mendel (1822-1884) began an experiment breeding varieties of garden peas. His work took eight years to complete and his results were so "groundbreaking" that his contemporaries did not fully grasp the significance of his discoveries. Tracing the inheritance patterns of certain criteria (color, texture, shape) with more than twenty-five thousand pea plants, Mendel discovered that a binary system of dominant and recessive "genes" (the modem term) were passed on separately through the parent plants and thus the characteristics of the offspring could be mathematically determined. It was not until 1900 that botanists, with the rediscovery of Mendel's work, launched the modem science ofgenetics.40 The results of Mendel's work seemed to con-

39 Paul, Controlling Human Heredity, 42. 40 The Field Museum, "Gregor Mendel: Planting the Seeds of Genetics," http://www.fieldmuseum.org/mendel/story_life.asp (accessed April 3, 2009). A British scientist in 1905 coined the term "genetics." 19 firm the operation of inheritance independent from the environment. Nevertheless, there continued to be wide disagreement among scientists over the relative influence of envi­ ronment and heredity.

In the United States, sociologist Edward Alsworth Ross (1866-1951) described

Pearson's national degeneration as "race suicide." Measured by the declining birth rates, there was a fear by many that the "old stock" or "native" race of Americans was in dan­ ger of extinction. The term first appeared in an address Ross gave to the American

Academy of Political and Social Science in 1901. "The working classes gradually delay marriage and restrict the size of the family as the opportunities hitherto reserved for their children are eagerly snapped up by the numerous progeny of the foreigner. The prudent, self-respecting natives first cease to expand, and then, as the struggle for exis­ tence grows sterner and the outlook for their children darker, they fail even to recruit their own numbers." "For a case like this," Ross explained, "I can find no words so apt as 'race suicide."'41 It was an idea that found wide political and intellectual legitimacy.

President Theodore Roosevelt repeatedly warned in speeches and articles that a "rapid decline of the birth rate ...inevitably signalizes race decay, and which, if unchecked, means racial death. "42 A seemingly endless mass of immigrants threatened not only to take the jobs of native Americans, they would be completely replaced by them. What raised the most concern was the belief that these new Americans "with different racial traits, with different national histories and with different cultures are certain to make an

41 Edward A. Ross, "The Causes of Race Superiority," Annals ofthe American Academy ofPolitical and Social Science 18 (July 1901 ): 88. 42 Roosevelt, "Race Decadence," 763. 20

·America, not only different from but inferior to, what it would be if left in the posses­ sion of the older stock." There was also a fear that the "defective classes" in the U.S. were contributing to race suicide. Harvard professor Robert Ward estimated the number of feebleminded persons in the U.S. in 1912 at "not less than 150,000...of whom only about 10 per cent are in institutions, the rest being free to propagate their kind." When not confined to prisons, criminals "populate the world with children much of whose in­ heritance is criminal" and the institutionalized insane, of which there are also "more than 150,000" may also "have already left offspring to perpetuate their insanity."43 Race suicide had a national importance and multiple causes; and the science of eugenics merged with Progressive social reform to offer the public and government a solution.

The meaning of "race" that theorists and practitioners used when referring to race sui­ cide, preservation, improvement, or betterment during the Progressive Era was typically invoked without specificity but most often meant one particular group of people. The most common assumption was "white Americans." Its usage could vary between a meaning that referred to the entire human race or, more frequently, to those of-a nation­ ality with "commonalities of language, customs, and experience."44 For example, it was

43 Robert D. Ward, "Our Immigration Laws from the View Point ofEugenics," American Breeders' Magazine 3, no. 1 (1912): 22. Ward was a cofounder ofthe Immigration Restriction League in 1894 and Secretary ofthe ABA's Immigration Committee. He was a professor of climatology at Harvard University, which emphasizes the diverse nature ofinterests that were so common to intellectuals in the Progressive Era. 44 Mae M. Ngai, Impossible Subjects: fllegal Aliens and the Making ofModern America (Princeton: Princeton University Press, 2004), 23; See also Thomas C. Leonard, "Retrospectives: Eugenics and Economics in the Progressive Era," The Journal ofEconomic Perspectives 19, no. 4 (2005): 208; Paul, Controlling Human Heredity, 106. 21 common for writers to refer to the German, Irish, Hungarian, Celtic, Mediterranean, or

French races.

An obvious marker of racial difference for many people was skin color. Others used physical features that they could describe in pseudo-scientific terms. The concern over assimilating a large number of newly arrived immigrants from non-Western

European nations, for example, was based on the uncertainty of what happens when the

"the long-skulled, (dolicocephalic ), blond, blue-eyed race [meets] with ... the round­ skulled (brachycephalic), generally black-haired and black-eyed race.',45 Occasionally, eugenicists would also use the word "blood" interchangeably with race.

Race was also a descriptor for a range of abilities and character. "Aggressive­ ness, inventiveness," and a desire for "conquest" characterized the white man, according to the American Breeders' Association (ABA).46 Ross commented that the "Chinese have amazing powers of adaptability to different climates."47 And, of course, there were the now-familiar correlations between morality and race. Hondurans, according to Ross, were "happy-go-lucky negroes who rarely save," Venezuelan laborers "live for to-day and all their week's earnings are gone by Monday morning," and Brazilians "work as little as they can."48 That was in contrast to the superior Anglo "ideo-motor" type driven by an idea rather then short-term sensory gratification.

45 American Breeders' Association, "Race Genetics Problems," American Breeders' Magazine 2, no. 3 (1911): 232. 46 Ibid., 231. 47 Ross, "The Causes of Race Superiority," 69. 48 Ibid., 76. 22

The most important factor in determining the whiteness of an individual often related to how American they were. The "Slavic races," author, sociologist, and

University of Chicago professor, Annie M. MacLean wrote, "brought over to this coun­ try the manners and customs of a lower civilization, and...tend to perpetuate their civilization instead of raising ... to a higher level."49 At that higher level, she explained, were "Americans" and those immigrants who were making progress towards becoming

American such as the "immigrants of Anglo-Saxon and Celtic origin."50 The ability to become American for some was simply out of reach in large part due to the color of their skin. For others, it could be a matter of diligence and a willingness to embrace the values of Anglo-America. Race, like class, afforded some the opportunity to become a part of American society. There was also a large degree of variability in the social con­ struct of race by region. For example, Europeans that belonged to nationalities consid­ ered "foreign" and thus perhaps not assimiliable in eastern cities were more likely to be considered "white" in California.

One of Galton's first proposals to realize his vision of a race of geniuses was to encour­ age marriages between leading individuals. Sanctioned by "a system of competitive ex­ amination for girls, as well as for youths," the government would pay "a considerable sum ... to the endowment of such marriages as promised to yield children who would grow into eminent servants of the State."51 By contrast, marriages among those persons deemed to be "refuse" and composed of "weakly and incapable men," he thought,

49 Annie M. MacLean, Wage-Earning Women (New York: Macmillan, 1910), 154. 50 Ibid. 51 Galton, "Hereditary Talent and Character," 165. 23 should be "discouraged and retarded." Such a dual course of action would be "amply sufficient to eliminate [the unfit] in a few generations."52

Besides ideas about the management of marriage, followers of Galton in Great

Britain were relatively constrained in terms of translating eugenic ideas into action.

Organized labor was particularly instrumental in limiting legislative possibilities such as voluntary or coerced sterilization. The influence of the Catholic Church and disagree­ ments among various eugenics organizations further prevented enactment of eugenic policies. Public education concerning the stakes of national degeneration represented the most extensive effort of British eugenicists. They reminded the eugenically fit of their responsibility to the race to procreate and encouraged the less desirable to take advan­ tage of birth control.53 By contrast, eugenic reformers and organizations in the United

States enjoyed greater philanthropic and state support. Whereas in England eugenically informed legislative proposals required Parliament's (i.e., national) approval, in the U.S. reformers could lobby for laws at the state level where circumstances might prove more favorable. 54 From the beginning, American eugenicists imagined a state-led effort to im­ plement their ideas.

In the United States, an effort to encourage state support of eugenics coincided, and was made possible, by the enormous expansion of government into areas of "social control." Reformers and "social scientists moved in the direction of change through the law" at the same time that "eugenic ideas ...acquired new impetus with the Progressive

52 Ibid., 319. 53 Paul, Controlling Human Heredity, 72-4. 54 Ibid., 74. 24

Era advent of a more expansive government." 55 President Roosevelt, for example, fre­ quently connected his fear of race suicide with the need for the government to provide legal protection for women. "Motherhood," he wrote, "must be protected; and the State should make the security of the mothers its first concern."56 He returned many times throughout the 191 Os to the theme of protecting women and their maternal function and he was particularly concerned with protection in the form of labor legislation. The in­ ability of the state "to secure the welfare of future generations by protecting the women and children in this generation" with labor laws was unacceptable.57

The potential ofeugenicists to mobilize government intervention encouraged and the rhetorical and philosophical flexibility of eugenics enabled Progressive reformers to apply those principles to a number of different issues. The range of social scientists

"who embraced eugenic ideas and policies is impressive, in both its breadth and its ideological diversity."58 For example, in 1913, the Los Angeles Times reported that the

Eugenics Committee of the American Association for the Study and Prevention of

Infant Mortality carried a motion to explore a "national society for the promotion of

55 Sybil Lipschultz, "Hours and Wages: The Gendering of Labor Standards in America," Journal ofWomen's History 8 (Spring 1996): 117; Leonard, "Retrospectives," 217. 56 Theodore Roosevelt, "Women's Rights; and the Duties ofboth Men and Women," The Outlook 100 (February 3, 1912): 265. 57 Theodore Roosevelt, "Nationalism and the Workingman," The Outlook 97 (February 11, 1911): 305. 58 Thomas C. Leonard, "Mistaking Eugenics for Social Darwinism: Why Eugenics Is Missing from the History of American Economics," History ofPolitical Economy 37 (2005): 200. 25 practical eugenics" in collaboration with the American Breeders' Association.59 In that same year, the National Eugenics Society formed in Denver, Colorado by the "leading exponents of child welfare in all parts of the country."60 At forums such as the First

National Conference on Race Betterment in Battle Creek, Michigan in 1914, speakers discussed the relevance of such topics as "improved methods of general education,"

"improved methods of housing," and the "moderate use of alcoholic beverages and to­ bacco" as well as more eugenically recognizable topics such as the "rational control of marriage and divorce."61 John Harvey Kellogg, a physician and the father of Com

Flakes, also wrote approvingly of the public education issues discussed at the confer­ ence such as improved ventilation of school buildings, open air classrooms for children predisposed to tuberculosis, and dental inspections.62 Clearly, the participants in this fo­ rum were interested in many different Progressive Era social reforms that incorporated questions ofrace preservation and improvement. The state governments most enthusias­ tic about eugenics typically were the ones that attempted to implement the ideas dis­ cussed at these conferences.

Few American citizens were as motivated by eugenic ideas as those in California, which

"was home to an extensive eugenics movement" supported by leading intellectuals,

59 "Favor national society to promote eugenics," Los Angeles Times, November 16, 1913. 60 "To evolve perfect baby new society's object," Los Angeles Times, February 5, 1913. 61 "Eugenics defines ideal type ofwoman," Los Angeles Times, January 9, 1914. 62 J.H. Kellogg, "First Race Betterment Conference at Battle Creek," Survey 31 (February 21, 1914), 652. 26 wealthy patrons, and powerful politicians. 63 "In contrast to their counterparts in other states who imitated broader trends, California eugenicists were players on the national scene from the outset."64 Wealthy botanist and horticulturist Luther Burbank wrote The

Training of the Human Plant, which argued that if human breeding, much like plant breeding, were "wisely directed and accompanied by a rigid selection of the best and as rigid exclusion of the poorest," therein rested "the hope of all progress. "65 Stanford

University President David Starr Jordan, "the single most influential intellectual in the state of California" in the late nineteenth century, provided leadership in national orga­ nizations like the Eugenics Committee of the American Breeders' Association.66 Citrus magnate Ezra Gosney financed the Human Betterment Foundation and studies such as the Sterilization for Human Betterment by Paul Popenoe that provided justification for

California's compulsory sterilization law. Numerous professors like Samuel J. Holmes and William P. Lucas from the University of California and Lewis Terman from

Stanford wrote books and studies, gave lectures, and lent a large measure of intellectual credibility to eugenic ideas.

The appeal of eugenics in California lay in its foundation as a destination for

American settlers inspired by hopes of improvement and progress. Eugenicists em­ ployed modem science and technology, including the "maxims of heredity and biology,"

63 Chloe S. Burke and Christopher J. Castaneda, "The Public and Private History of Eugenics: An Introduction," The Public Historian 29, no. 3 (2007): 13. 64 Stem, Eugenic Nation, 84. 65 Luther Burbank, The Training ofthe Human Plant (New York: The Century Co., 1907), 4. 66 Kevin Starr, Inventing the Dream: California through the Progressive Era (New York: Oxford University Press, 1985), 225. 27 to cultivate a supposed wilderness. From its earliest days, "eugenicists shaped modem

California," according to Stem through "agricultural experimentation ...medical inter­ vention, psychological surveys, municipal and state legislation, and infant and maternal welfare."67 Intellectuals believed California could "fuse science and ethics." Selection of the fit, in nature and society, was a guiding principle of "social evolutionary thinking" that connected evolution with California's formation.68 The racial attitudes implicit (and often made explicit) in eugenics directed towards blacks, Asians, Indians, and Latin

Americans arrived with those early settlers, too.69 A part of the process that defined

California at the tum of the century, took its shape from eugenic-based segregation and sterilization with the help of intellectuals, patrons, and politicians.

Segregation was the isolation of persons deemed "unfit" through imprisonment or institutionalization. In its earliest forms, the segregation of persons considered fee­ bleminded meant confinement to prisons or almshouses. In 1885, California established a dedicated home for the "Care and Training of Feeble-minded Children."70 The

Sonoma State Home's initial approach was to educate and care for its patients in an en­ vironment that resembled a family structure with the hope ofpreparing the children for a normal life in their community upon release.

That philosophy began to change at the tum of the century as the focus shifted

"from the protection of their patients to the protection of society." The children in

67 Stem, Eugenic Nations, 84. 68 Starr, Inventing the Dream, 225. 69 Stem, Eugenic Nation, 85-6. 7°Kline, Building a Better Race, 35. 28 homes for the feebleminded, according to the newly-popular precepts of eugenics, were

"no longer simply a burden but a menace to the gene pool."71 The California State

Commission in Lunacy and professors from Stanford and the University of California collaborated on a system of oversight and care designed to identify and classify danger­ ous, defective, and immoral persons who needed to be isolated from society. Concurrent with that shift was the tendency to equate deviations from accepted Victorian sexual morality with feeblemindedness, which was increasingly associated with women. 72 As the number of applicants who conformed to this new understanding rose beyond the ca­ pacity of state institutions and the focus on those who were deemed a eugenic menace to society shifted to sexually promiscuous women, California saw sterilization as a more effective means ofrace preservation.73

California has the unfortunate distinction of the state with the highest rate of eugenic sterilizations, "performing approximately 20,000 sterilizations-or one-third of

60,000 total nationwide-from 1909 to the 1960s."74 Table 1 compares the number of sterilizations performed by state up to 1933. Of the 16,066 performed in the period re­ corded, California accounted for over half and significantly more than the remaining states combined.

71 Ibid., 36-7. 72 Ibid., 38-42. 73 Ibid., 49-50. In 1914, the Home had eleven hundred residents and one hundred more on a waiting list; by 1924 it had more than two thousand residents and one thousand more on a waiting list. 74 Stem, Eugenic Nation, 84. 29

State Total California 8,504 Virginia 1,333 Michigan 1,083 Kansas 976 Oregon 882 Minnesota 693 Wisconsin 492 Connecticut 338 Delaware 296 Nebraska 229 Indiana 217 New Hampshire 165 South Dakota 139 Alabama 131 Table 1. Operations for Eugenic Sterilization Performed in State Institutions under State Laws up to January 1, 193375

By 1922, fifteen states had passed sterilization laws. 76 Indiana was the first in 1907, how­ ever, the state supreme court declared it unconstitutional in 1921. Washington passed a

"prevention of procreation" law in 1909 that made a person guilty of child molestation, rape, or "adjudged to be an habitual criminal" subject to sterilization.77 California, the third state, passed an "asexualization" law in 1909 with a considerably wider net that included any inmate ofa "state hospital, home, or state prison."78 The legislature replaced this first law and expanded it with a second in 1913. The second law was then amended in

1917 to broaden its reach to include persons who suffered generally from mental disease

75 Image Archive on the American Eugenics Movement, "Eugenic Sterilizations Performed in U.S. through 1932, Human Betterment Foundation, Alternate," Cold Spring Harbor Laboratory, http://www.eugenicsarchive.org/html/eugenics/static/images/1760.html (accessed April 8, 2009). 76 Harry Hamilton Laughlin, Eugenical Sterilization in the United States (Chicago: Psychopathic Laboratory ofthe Municipal court of Chicago, 1922), 14. 77 Ibid., 15. 78 Ibid., 17. 30 and minors with the consent of a parent or guardian and additionally twisted the language that justified the law with a rationale that was more "eugenic rather than penal." 79 The ·

California laws passed virtually unopposed by the legislature.

Sterilization was not widely practiced in the first decade of the law's sanction. In fact, the largest state institution, the Sonoma State Home performed only twelve sterili­ zations between 1909-1918 .. Dr. Fred 0. Butler, the Home's new superintendent in

1918, claimed the law's "weak" wording dissuaded health officials from fully asserting its use. After the 1917 law and Butler took charge of the Home, the number of patients sterilized rose precipitously.80

Eugenics in California played a leadership role in the debates over immigration, a cen­ tral is~ue of importance to the state and nation. Questions of race and degeneration, culture and what it meant to be "American" were as much a part of the debate as com­ petition for jobs, poverty and urban overcrowding. As an expert in the debate, Professor

Ward asked, "How far do our present immigration laws enable us to exclude those ali­ ens who are physically, mentally, and morally undesirable for parenthood ... in other words, are eugenically unfit for race culture?"81 A contributor to the Los Angeles Times claimed the question of immigration was "probably the greatest problem that has been

79 Ibid., 18-9; Stem, 100nl 11. 8°F.O. Butler, "A Quarter ofa Century's Experience in Sterilization of Mental Defectives in California," American Journal ofMental Deficiency 49, no. 4 (April 1945): first page, http://www.eugenicsarchive.org/eugenics/image_ header.pl ?id= 1384&detailed= l (accessed April 4, 2009); Kline, 50-1. 81 Ward, "Our Immigration Laws from the View Point ofEugenics," 20. 31 presented since civilization began" and it was "essentially a problem in eugenics."82

Eugenic organizations eagerly jumped into the debate. The ABA formed a Committee on Immigration within their Eugenics Section in 1912 that began with an investigation into "the needs and possibilities of eugenic work in immigration matters. "83 The superintendent of the Eugenics Record Office, Harry H. Laughlin, was appointed to the

House Committee on Immigration and Naturalization where he worked with political allies for passage ofthe National Origins Act of 1924.

The source of the concern with uncontrolled immigration from a eugenics per­ spective was two-fold. First, in terms of the widely held belief in a racial hierarchy, those people that were coming to the United States in such large numbers were from less desirable races and their intermarriage and reproduction with "old stock" Americans was the root of race degeneration. Second, the sheer number of immigrants and their perceived exceptional fecundity threatened to overrun the country. "Among the families of our newest immigrants," a leading advocate of immigration reform observed, "chil­ dren are born with reckless regularity." As a result, "the old American, Anglo-saxon race is being absorbed or disappearing and the mongrelization of those that are numeri­ cally superior are replacing them. "84

82 Henry Smith Williams, "The greatest migration in history," Los Angeles Times, August 8, 1915. 83 American Breeders' Association, "First Report of the Committee on Immigration ofthe Eugenics Section," American Breeders' Magazine 3, no. 4 (1912): 250. 84 Robert D. Ward, "National Eugenics in Relation to Immigration," The North American Review 192 (July 1910): 59. 32

The regional character of race and immigration concerns was especially evident in

California. The incorporation of "three new cultural groups into existing racial patterns" of American life: Mexicans, Chinese, and Japanese, had far-reaching consequences for the conflicts and policies that developed over immigration.85 Added to these groups, of course, were also Native Americans, blacks and the various etlmicities of the first white settlers. This complicated mixture ofpeople resulted in a division of Californians from the very beginning into a hierarchy defined by race that dictated access to power that shaped political, economic, and social structures. As the rush for gold subsided by 1859, most

Californians began to shift towards large-scale agriculture or settle in San Francisco, the only major urban center. The owners of large farms and manufacturing firms preferred to employ low-wage immigrants, particularly Mexicans and Chinese.86

The call to restrict immigration began in the early 1850s, almost as soon as the first Asian and non-native Latin Americans arrived. The actions taken by the state leg­ islature were initially indirect measures, such as imposing a tax targeting Latin

American miners or the "withdrawal of business opportunities" for Chinese men. 87

These first measures and subsequent anti-Oriental calls to specifically limit immigration began at the moment when there was "direct economic competition with the white population."88 The federal Chinese Exclusion Act of 1882, largely the result of orga­ nized labor in California, prohibited "Chinese laborers" from entering the U.S. for ape-

85 Tomas Almaguer, Racial Fault Lines: The Historical Origins ofWhite Supremacy in California (Berkeley: University of California Press, 1994), 1. 86 Ibid., 154. 87 Eaves, A History ofCalifornia Labor Legislation, 112. 88 Almaguer, Racial Fault Lines, 165. 33

riod of ten years and for those already in the country, from becoming naturalized

citizens. Congress amended the law several times between 1884-1902 each time be­

coming more restrictive. For example, the Geary Act of 1892, dropped the designation

of "laborer" and instead applied to "Chinese persons and persons of Chinese descent."89

As the "readily available," "cheap," "reliable and tractable" labor of Chinese immigrants

dried up after 1882, it was quickly replaced by Japanese and Mexican workers, espe­

cially in agriculture.9°California's Alien Land Act of 1913, in tum, which prohibited

"aliens ineligible to citizenship" (basically Asian residents) from owning property or

leasing land for a period longer than three years, held the Japanese accountable for their

imagined threat to white prosperity.

The opposition to immigrants may have originated in conflicts over access to

. employment, but the rationale and language for excluding them from citizenship or en­

try took on a distinctly racial and eugenic character. During its eleventh annual conven­

tion, The California State Federation of Labor, endorsed a monthly magazine, The White

Man, which was "devoted exclusively to the work of arousing public sentiment against

Asiatic immigration [and] deserves the support of all who believe that California should

remain a white man's country." The Proceedings from the convention also took the

chance to deride the Labor Commissioner for issuing a report favorable to Japanese im-

89 Hastings College of the Law, "Guide to Internet Resources on Racism, Race, and American Law," University of California, http://www.uchastings.edu/racism-race/ (accessed April 8, 2009). 90 Almaguer, Racial Fault Lines, 166-7, 183. 34 migration. In the view of labor, such an opinion was based not on a care for the "future of our civilization" but on the greed ofemployers that exploit cheap immigrant labor.91

The culmination of eugenicists' efforts in immigration legislation came· in 1924 with passage of the Johnson-Reed Immigration (National Origins) Act, which severely limited the number of persons from countries in southern and eastern Europe from en­ tering the U.S. The act did not include quotas on immigrants from the western hemi­ sphere, which primarily meant Mexico, but the provision was purely economic, "in deference to the need for labor in southwestern agriculture. "92 Congress had previously extended the restriction on Chinese immigrants indefinitely in 1902, and in 1907, the

"Gentlemen's Agreement" restricted settlers from Japan. "In whatever way the discus­ sion originated," about the need for immigration restriction wrote one journalist, "it is a question, if not of the supremacy of the race, at least the integrity and independence of race. "93 In a parallel with the shifts over the debate on women's labor laws, immigration restriction originated with a defense that was primarily in terms ofjob protection. But, still, alongside those first economic arguments were issues of race. The jobs immigra­ tion restriction protected were for the benefit of white (male) Americans. Infected with the widespread belief in racial hierarchies, immigration restriction and labor laws could appeal to fears ofdegeneration and extinction.

91 California State Federation of Labor, Proceedings: Eleventh Annual Convention (San Francisco: Associated Printing Company, 1910), 56. 92 Ngai, Impossible Subjects, 23. 93 John T. Bramhall, "California and the Japanese: An Existing Menace," The Outlook (November 1, 1913): 477. 35

It was common for writers to make a distinction between various immigrant groups that were fit or unfit as a measure of their assimilability into American culture.

The racial quotas specified in the National Origins Act is an obvious example of that type of distinction, but some commentators such as President Roosevelt also made it clear there were some outsiders that should always be welcomed. In his Fifth Annual

Message to Congress in 1905, the President exhorted his fellow Americans to stand by their strong tradition of accepting those who desire and are fit for citizenship. He pro­ posed to restrict immigration to "the right kind" and limit those "of the wrong kind."

"We cannot afford to pay heed to whether he is of one creed or another, of one nation, or another" to determine that fitness. According to Roosevelt those not capable of citi­ zenship would include the "insane, idiotic, epileptic, and pauper ... all people of bad character, the incompetent, the lazy, the vicious, the physically unfit, defective, or de­ generate should be kept out. The stocks out of which American citizenship is to be built should be strong and healthy." There was even a class of Chinese that he "heartily wel­ comed." "Chinese students, business and professional men of all kinds...should be en­ couraged to come here" he insisted. There is a difference in their character that the laws should reflect and admit. 94

Three days before the United States Supreme Court handed down its decision in the

Miller case in 1915, the Panama-Pacific International Exposition (PPIE) opened to great fanfare in San Francisco. Several million people visited the ten-month long fair that

94 American Presidency Project, "Theodore Roosevelt: Fifth Annual Message," University of California, Santa Barbara, http://www.presidency.ucsb.edu/ws/index.php?pid=29546 (accessed April 9, 2009). 36 commemorated the opening of the Panama Canal a year earlier.95 With the encourage­ ment of the expo's organizers, eugenics had a prominent presence and "doctrines of ra­ cial superiority and inferiority were ubiquitous."96 One of the award-winning exhibits at the expo was the Race Betterment booth. In coordination with the expo, the American

Genetic Association (formerly the American Breeders' Association) held their twelfth annual meeting and the Human Betterment Foundation convened the Second National

Conference on Race Betterment.

A significant aspect of the PPIE was its emphasis on improvements in medical advances that reduced the vulnerability of Americans to diseases common in tropical climates located in countries that were increasingly a concern for U.S. imperial interests.

The connection ofthese two issues helps demonstrate the ways in which a view of soci­ ety conditioned by the ideas of eugenics had multiple manifestations. Stem asserts, "The proximity of race betterment and tropical medicine at the PPIE belies the separation that some scholars have erected between eugenics and public health, contrasting them as in­ compatible, insofar as the former emphasized the propagation of the 'fittest' and the elimination ofthose deemed degenerate, and the latter strove to save and extend lives by bringing the advantages of health to all. Instead, as the PPIE demonstrates, the early twentieth century was an amalgamable period in which diverse and seemingly contra­ dictory initiatives stood comfortably under the Progressive banners of improvement, ef-

95 Descriptions ofthe PPIE are from Stem, Eugenic Nation, 27-31. Stem writes that nineteen million visitors were counted during the ten months; however, she specifies that her source did not distinguish between original and repeat visitors (28n8). 96 Stem, Eugenic Nation, 47. 37 ficiency, and hygiene, and were motivated by the idea that the application of wide­ ranging scientific knowledge could optimize American society. " 97 In other words, eugenics was more than a self-contained idea with a fixed application. Eugenics, like tropical medicine some argued, was an instrument of progress and a tool of moderniza­ tion that had the power to alter the way problems were perceived and solved. The many millions ofpeople who visited the eugenics exhibit may not have seen the specific value of sterilization, for example, but the idea that human progress through the intervention in reproduction was possible and scientifically validated would have made an impres­ sion that could be applied in a variety of ways.

The PPIE's Race Betterment exhibit and the ancillary symposiums by eugenic organizations served to call national and international attention to the leadership and initiative of the California eugenics movement and clearly demonstrated the extent to which both had become a part of the cultural landscape. The location of the expo in

California held additional symbolic value for those who believed the state represented the "culmination of the inexorable and forward march of progress."98 It was a laboratory and manifestation of eugenic ambitions.

Eugenics in the United States was not a fringe movement followed by only a devoted few and promoted by spokesmen on the margins of society.99 By the time leading eugenicists Paul Popenoe and Roswell Johnson published their best-selling study

Applied Eugenics in 1918, it had gained widespread currency in many different social

97 Stem, Eugenic Nation, 30. 98 Ibid., 28. 99 Burke and Castaneda, "The Public and Private History ofEugenics," 9. 38 movements. "Eugenic ideas extended well beyond the organizations dedicated to eugenic research and proselytizing," it became a source of ideas and action for a vast number of "scholars, writers, and policymakers."100 An appeal to the anxieties of a changing world and "powered by the prestige of science," eugenics rapidly gained pub­ lic attention. 101 Newspapers and magazines across the nation regularly ran articles covering eugenics stories. By 1910, "eugenics was one of the most frequently refer­ enced topics in the Reader's Guide to Periodical Literature."102 Historian Phillip Reilly cites twenty-seven articles from the Readers' Guide on eugenics from 1905-1909 and one hundred twenty-two between 1909-1914.103

Eugenic associations and activity also expanded during the first two decades of the twentieth century. The American Breeders' Association formed in 1904 to focus on issues of plant and animal breeding as well as human heredity. A decade later, "the steady growth of eugenics, and the full recognition granted to this new and important science by the association" led the ABA to change their name to the American Genetic

Association and their publication, the American Breeders' Magazine, to The Journal of

Heredity, which they still published today. 104 Charles Benedict Davenport who founded the Eugenics Record Office in 1910 as a major center ofresearch, joined with economist

Irving Fisher and physician John Harvey Kellogg in 1906 to establish the Race Better-

100 Leonard, "Mistaking Eugenics for Social Darwinism," 204, 204n7. 101 Dikotter, "Race Culture," 468. 102 Paul, Controlling Human Heredity, 10. 103 Philip Reilly, The Surgical Solution: A History ofInvoluntary Sterilization in the United States (Baltimore: Johns Hopkins University Press, 1991), 18. 104 "Breeder's Association will Change its Name," American Breeders' Magazine 4, no. 4 (1913): 177. 39 ment Foundation. The following year, the Eugenic Association of California formed with a mission to employ, "the science of so propagating the human race as will lead to the highest attainment in mankind, spiritually, mentally, morally and physically."105 The worldwide fever had reached such a pitch that in 1912, eugenicists held the first Inter­ national Eugenics Congress in London. Seven hundred and fifty delegates from twelve countries, including the likes of Winston Churchill, Alexander Graham Bell and Charles

William Eliot attended the conference to discuss this new "planetary revolution."106

The ideas ofprogress, uplift, improvement, and degeneration permeated American soci­ ety from San Francisco to New York City. They were the spirits of an era and the ideas behind the movements that gave Progressivism its meaning. The rise of policy experts, trained in the newest fields of social science, responded to the antidemocratic tendencies of the Gilded Age that forced workers into a factory fraught with the dangers of an un­ regulated workplace.

From its lofty origins, expounded by a British aristocrat as an idea about the po­ tential greatness of man, eugenics crossed the Atlantic to a receptive audience, condi­ tioned by the newest theories of evolution and biology and eager to apply its prescriptions for improvement. The extent to which eugenics influenced twentieth-cen­ tury American culture is significant, as recent scholarship has discovered. Frank

105 "Association forms," San Francisco Call, April 5, 1907. 106 Kevles, In the Name ofEugenics, 63; "Eugenicists in session," Los Angeles Times, July 26, 1912. 40

Dikotter has observed, "Eugenics was a fundamental aspect of some of the most important cultural and social movements ofthe twentieth century."107

The ideas of eugenics were extraordinarily malleable and their application was broad. Even to the modem historian, "there is no consensus on what eugenics is."108 The laws that permitted sterilization of the "feeble-minded" or confinement in an asylum, the advice offered by counselors in the selection of a marriage partner, or the testimony re­ garding the dysgenic affects of miscegenation may be the most well known examples of eugenic ideas, but they were not limited to those alone. Reformers and intellectuals who endorsed the principles of eugenics applied them to a wide variety ofproblems.

The key to this flexibility was the heterogeneity of the underlying ideas. "All eu­ genicists shared at least one conviction," Diane Paul concluded, "that reproductive deci­ sions should be guided by social concerns. On virtually every other question, they divided."109 There was no comprehensive dogma. Scientists continually revised eugenic theories with each new discovery in biology or heredity. It provided reformers with a framework in which to think about evolution, civilization, and progress but there were few limits on how to apply that framework. As chapter two will demonstrate, in the case of labor legislation, there was a confluence of ideas and purpose with eugenics that was mutually reinforcing.

107 Dikotter, "Race Culture," 467. 108 Paul, Controlling Human Heredity, 4. 109 Ibid., 72. 41

Chapter 3

EUGENICS AND LABOR LAW

The purpose of social reform during the Progressive Era was to improve the envi­

ronmental and material conditions of life. Laws that provided prenatal health care, garbage

pick up, access to public education, or limited the number of hours a woman could work in

a day are examples of progressive reforms that attempted to make daily life more

manageable. Supporters of these measures oftentimes would also argue as a justification

that they had a direct affect on the community's future well being. Although many

eugenicists made claims that theirs was a science strictly rooted in the laws of heredity that

brought about change over the course of several generations, many more practitioners also

believed that one's immediate surroundings could influence those laws of heredity. Based

on that belief there is, in fact, a correlation between labor legislation and eugenics. This

chapter will argue that the cultural affinities between the efforts to limit the number of hours

a woman could work and to preserve the race were unmistakable and that environmental

reform-improvements in living or working conditions-was no less an object of race

improvement than sterilization or engineering marriages.

To make such an argument it is necessary to do three things. First, to continue

the discussion from chapter one, pull out and highlight some ofthe shared culture in the

values, language and objectives of these two movements that clearly demonstrate there

· was a paradigm into which eugenics and labor law both fit and connected. Government

intervention and management of social policy is what made the Progressive Era possi­

ble. It required the authority of the state's police power to abridge a woman's right to 42 freely contract her labor and it was necessary to violate the body of the feebleminded to perform sterilization operations. The central role of motherhood for the specific purpose of race preservation and the importance of the community over the individual are sev­ eral points ofthat shared culture.

Second, it is necessary to address the obvious objections one might raise to such a claim of correlation. A widely known tenet of eugenics is the preference it places on the wellbom with the aim to eliminate the imperfect. Labor laws typically protected the poor and unskilled workers that eugenicists might not have considered to be among the

"fit." However, many more practically minded adherents understood that between the

605 eminent men Galton identified over the course of 400 years of world history and the

20,000 people California sterilized during the twentieth century, were many millions of

"normal" people for whom eugenics could have some positive effect if properly applied.

There is also a conflation of eugenics and social Darwinism that leads to a mistaken no­ tion that the interference in social relations was not consistent with eugenic principles.

Third, and most importantly, will be an examination of the eugenic philosophies that contained the prescriptive logic for labor laws. Despite the apparent rigidity of a science based on Mendel's discovery of genetics, eugenicists in the early twentieth century did not clearly understand the mechanisms that transmitted individual charac­ teristics such as talent and ambition. In fact, Galton himself had serious doubts about

Mendel's work. The question was widely debated and many people retained a belief that the environment could have positive and negative effects o~ heredity. The question of the relative values of nature and nurture were vigorously contested. 43

Shared Cultural Values

Perhaps the closest connection in terms of shared cultural values between eu­ genicists and labor law advocates was a belief in the centrality of motherhood to a woman's role in society. Labor advocates, social scientists, and eugenicists all made statements to that affect. "The prime function of woman in society," Annie MacLean leaves no doubt about, "is not speeding up on a machine; it is not turning out so many dozen gross ofbuttons or cans in a day...The prime function ofwoman must ever be the perpetuating of the race. If these other activities render her physically or morally unfit for the discharge of this larger social duty, then woe to the generations that not only permit such but encourage such wanton prostitution of function." 1 MacLean's three-year study, published in 1910, attempted to throw some light on the awful working condi­ tions of women across the nation with the hope that it might have brought about greater government regulation. One of the most vocal proponents of protection for working­ women was Edward Ross. Ross, who coined the term "race suicide," explained how a failure to protect women from the ravages of industry might jeopardize the health of the

American race. In a newspaper article printed shortly after the Muller decision Ross de­ scribed the type of woman, "squat, splay-footed, wide-backed, flat-breasted, broad­ faced, [and] short-necked," that would begin to appear "all through the 'lower stratum" in a matter of a few generations ifthere were a failure to provide legal protection such as

Oregon's law for workingwomen.2 Karl Pearson urged a program that would

1 MacLean, Wage-Earning Women, 177. 2 "Penalty woman pays to industrial progress," The New York Times, May 3, 1908. 44

"Strengthen the Mothers" as he called it. "The physical enfeeblement of women exposed to the stress and strain of modem life must inevitably lead to the physical deterioration of subsequent generations unless something more than at present is done for the benefit of the coming race."3 In each case, the authority and reach of the government was necessary to implement a program with society-wide significance.

The premise for enacting protective labor laws for women in the name of the public welfare was the perceived effects of unsafe working conditions on a woman's reproductive health. Rationales such as a woman's "special physical organization" or physical weakness were not so much to protect the individual factory worker but, rather, her future children. "Courts often made the link between physical fragility and danger to the future generation."4 Judges made that connection so often it appears as though they indeed cared very little for the women who were subject to these laws, and only for their potential future offspring. University of Chicago economist and social reformer

Sophonisba Breckinridge flatly stated, "such legislation is not enacted exclusively, or even primarily, for the benefit of women themselves," it was to protect society and its future. 5 The cost to society if it did not enact protective labor laws, she reasoned, was the cost of caring for the degenerates that resulted from industrial conditions and their

3 "Race-Suicide and Racial Stamina," Literary Digest (October 18, 1913): 676. 4 Julie Novkov, "Liberty, Protection, and Women's Work," 877. The primary and secondary literature explaining the rationales used to justify protective labor laws for women is sizeable. Economists, patemalists, matemalists, and moralists are just a handful ofthe groups who offered arguments in support of laws for women workers. The reproductive role ofwomen, however, often remained a central pillar for many of them. See for example Thomas C. Leonard, "Protecting Family and Race," 759. 5 Sophonisba P. Breckinridge, "Legislative Control of Women's Work," The Journal ofPolitical Economy 14, no. 2 (February 1906): 108. 45 lack of future productive value. "The Progressive case for women's labor legislation more commonly invoked working women's obligation to society than it did society's obligation to working women."6 The potential burdens imposed on women as a result of these laws was a small price to pay for the preservation ofthe race.

Two of the era's leading labor law advocates, Josephine Goldmark and Louis

Brandeis, assembled their research on the effects of industrial work on women in a six hundred-page book, Fatigue and Efficiency, published in 1912. Goldmark explained in a newspaper interview that it was an attempt to "bring the whole subject of fatigue and exhaustion in line with the newest developments of detailed laboratory research."7 The outcome of her investigation combined beliefs about the proper roles of women with a strong faith in science. One of her principle conclusions was that "subnormalities of size and weight often characterize the children born of working mothers."8 Goldmark echoed the claim that the efforts to secure legal protection for women is not necessarily for the worker. "Of course the great argument against overwork and fatigue poison in women is not the argument of industrial efficiency, or even of the women's health and welfare for their own sakes alone. It comes back to the question of the woman's fitness for mother­ hood. Overwork destroys that fitness. "9 As women increasingly challenged traditional

6 Leonard, "Protecting Family and Race," 772. 7 "What the study ofthe relation of fatigue and efficiency shows," The New York Times, July 7, 1912. 8 Josephine Goldmark and Louis Brandeis, Fatigue and Efficiency: A Study in Industry (New York: Russell Sage Foundation, 1912), 97. 9 "What the study ofthe relation of fatigue and efficiency shows," The New York Times, July 7, 1912. 46 gender roles, "overwork" was just one of the threats that seemed to be undermining the importance ofmotherhood.

The rapid growth of women with a college education also caused a great deal of social consternation. The number of women in college tripled between 1890 and 1910 and by the 1920s, the number of men and women in college was roughly even. 1°For centuries, institutions of higher learning had been the near-exclusive privilege of men.

Not only were women now a more common site on college campuses, they were armed with an education and eager to apply their new learning outside the domestic sphere, ironically, in much the same way that Goldmark herself had. An educated woman, how­ ever, was not a familiar sight to most Americans and they faced determined resistance.

Some detractors even made a connection between a woman's level of education and ideas of race preservation. A wildly popular book published in the 1870s by Harvard physician Edward H. Clarke, titled Sex in Education: or, A Fair Chance for Girls claimed that an education might actually make a woman sterile. 11

Suffrage, too, portended a dangerous departure from women's primary role as the "mothers ofthe race." Although historians have repeatedly demonstrated the perme­ ability of the boundaries commonly associated with the cultural construct of "separate spheres" that has come to characterize the gender roles of this period, they are bounda­ ries that Progressives recognized (and manipulated). For some observers, the idea of

10 Kline, Building a Better Race, 10. 11 Edward H. Clarke, Sex in Education; Or, A Fair Chance for the Girls (Boston: J. R. Osgood and Company, 1874), Under "Part II: Chiefly Physiological," http://www.archive.org/details/sexineducationl 8504gut (accessed April 5, 2008). 47 suffrage transgressed those boundaries, threatened "social disorder," and rejected the importance ofmotherhood. 12 The identification ofwomen as mothers, or potential moth­ ers, was the most common point of reference through which society interpreted all her activity. The role of motherhood in the suffrage debate, for example, was a central ar­ gument for both sides of the issue. Supporters argued that the right to vote would allow the moral, maternal influence of women to positively affect government policy while those opposed claimed that the public, corrupt environment ofpolitics would destroy her fitness as a mother.

The "mothers of the race" argument by Breckinridge, Florence Kelley, and oth­ ers appears across the political and ideological spectrum and its justification goes deeper than the mere biological capacities of sex. Writer and sociologist Charlotte Perkins

Gilman asserted that the very essence of what it means to be a human depended on maternal functions. She described in her critique of the "man-made world" the female sex as the "race type" whose Darwinian, instinctual tendencies are the "preservation and elevation" of the race as she selected male "specimens most valuable" to its propagation. 13 She fiercely demanded equality between the sexes because it would result in the female being, "not less, but more, efficient as a mother. She will understand that, in the line of physical evolution, motherhood is the highest process; and that her work,

12 Paula Baker, "The Domestication ofPolitics: Women and American Political Society, 1780-1920," The American Historical Review 89, no. 3 (1984): 620. 13 Flavia Alaya, "Victorian Science and The 'Genius' Of Woman," Journal of the History ofIdeas 38, no. 2 (1977): 277; Charlotte Perkins Gilman, The Man-Made World: or, Our Androt:entric Culture (1911; repr., New York: Charlton Company, 1970), 49, 238. 48 as a contribution to an improved race, must always involve this great function." 14

Gilman explicitly made the link between a woman's maternal function and a eugenic idea ofrace preservation or improvement.

Many scholars have argued that men supported labor laws for women as a sort of

"wedge" in the hopes that it would result in a reduction in the hours men worked. Others claim unions saw the laws as effective ways to eliminate job competition from women, while others suggest that the precedents of judicial protection for an employer's due process precluded legislative efforts on behalf of men. 15 The case for each of those argu­ ments is not necessarily disputed, but it is also important to recognize that the arguments for protecting women as "future mothers" or the "race type" drew from long-held tradi­ tions and deep cultural values, and even the most advanced science. President

Roosevelt proclaimed motherhood a woman's "primal and most essential duty."16

Economists and social philosopher, Simon N. Patten explained, "evolution has given man strong sexual, but weak parental instincts, while the reverse is true of woman. The male all through the biologic evolution of life has been eager to beget offspring, but has cared little for them when they appear. The female has had little motive to beget off-

14 Gilman, The Man-Made World, 245. 15 For the "wedge" argument see for example, Kessler-Harris, Out to Work, 184; Novkov, "Constituting Workers, Protecting Women," 156. For the competition argument see also, Kessler-Harris, Out to Work, 201; Mary E. Becker, "From Muller v. Oregon to Fetal Vulnerability Policies," University ofChicago Law Review 53, (Fall 1986): 1240. For the judicial protection argument see Skocpol, Protecting Soldiers and Mothers, 373; Susan Lehrer, Origins ofProtective Labor Legislation for Women, 1905- 1925 (Albany: State University ofNew York Press, 1987), 42. 16 Roosevelt, "Race Decadence," 767. 49 spring, but has a powerful impulse to preserve them." 17 The protection of women was necessary to insure strong mothers. Strong mothers were necessary to improve and pre­ serve the race. Eugenics, labor laws, and maternal welfare occupied the same ground.

Supporters of eugenics and labor laws also shared a Progressive's belief in the importance of the group over the individual. The need to protect the interests of society legitimized the submission to government administration and the restriction of individual rights, such as a the number of hours in a day a worker could be employed. Similarly,

"eugenicists popularized a doctrine of reproductive morality that countered selfish individualism with social responsibility," according to historian Wendy Kline. Social and economic reformers blamed the liberal individualism of nineteenth-century laissez-faire doctrines for a culture of greed that made a handful of people fabulously wealthy at the expense of everyone else. A corresponding belief that unmanaged reproduction was a threat to the harmonious racial future of society led eugenicists to transform ''the politics of reproduction from a private matter of personal liberty to a public issue of racial health." 18

There was a natural alliance between the convictions of racial and maternal health that transformed decisions about reproduction and employment into concerns ofthe state.

Workers and Eugenics

In the early twentieth century, there was a lively debate swirling in the United

States and across the Atlantic about the most effective eugenic policies. Literary Digest magazine in fact referred to it as an "international eugenic war" pitting the supporters of

17 Simon N. Patten, "Theories of Progress," The American Economic Review 2, no. 1 (1912): 64. 18 Kline, Building a Better Race, 98. 50

Galton and his strict biological approach against the American, Charles Davenport who advocated a more practical and environmental approach. The proposition advanced by pure hereditarian eugenicists that only the genetically strong should procreate and the weak should refrain from propagating at all was criticized as "pure theory" and having no practical application. Davenport charged that if "only the strong can repro­ duce...what is left? You and I-almost the entire community-the great aggregate of peo­ ple who belong neither" to the strong or weak class. 19

For some, the difficulty in connecting eugenics and labor laws for women might be in reconciling the objectives of eugenics which, in part, was to eliminate the less desirable citizens in society with the protection of industrial workers who were sometimes described as being among that group. Just as Roosevelt could prefer the right type of immigrant over the wrong kind, or eugenicists made a distinction between the fit and unfit, there was a firm belief that there existed the deserving and undeserving poor. Reformers in the Progressive

Era were notoriously vague about the line between the two and yet convinced there was a rigid distinction. Reformers and politicians "saw the poor as victims in need of uplift but also as threats requiring social control."20 Thus, it was not always clear, even among contemporaries, who could be saved and who should be eliminated. Eugenicists like

Davenport, however, recognized that an effective strategy had to take into account the vast majority ofthe population, which also included working people.

19 "When Eugenicists Disagree," Literary Digest (December 13, 1913): 1169. 20 Leonard, "American Economic Reform in the Progressive Era," 109. See also Leonard, "'More Merciful and Not Less Effective': Eugenics and American Economics in the Progressive Era," History ofPolitical Economy 35, no. 4 (2003): 704. 51

Many scientists and theorists favored action on behalf of those who were strictly speaking neither exceptional nor defective. They looked at Galton's idea of selectively breeding the genius and realized such a program was not only impractical but would not result in a noticeable change in society's make-up in a reasonable amount oftime due to the small number of people affected. Lester Frank Ward (1841-1913), sometimes de­ scribed as the father of American sociology, for example, illustrated the problem of

Galton's demographic challenge (Figure 1).

mean

Mediocrity

Figure 1. The distribution of genius and feeblemindedness in the population according to Francis Galton.21

21 Lester F. Ward, "Eugenics, Euthenics, and Eudemics," The American Journal ofSociology 18, no. 6 (May 1913): 742. 52

As one can see, the number of people represented at the top and bottom of the scale is a small proportion and, according to Ward, is exaggerated as well. Instead, Ward repre­ sented a distribution of intelligence that emphasized the ninety-nine percent of normal minded individuals (Figure 2). Ward also drew a distinction between "visible genius" and "latent genius," the latter of which was "scattered somewhat uniformly through the whole mass ofthe population. "22

Genius one-tenth of1 per cent

[Latent genius and talent scattered somewhat equally throughout the mass, amounting in all lines to at least 50 per cent, needing only to be called out]

Normal minded 99 -11,oper cent

[Transition from defectives to nonnal not gradual, but abrupt, the latter sound, the former pathologic.]

Defectives one-halfof 1 per cent Figure 2. Ward's revised population distribution emphasizing the superabundance ofnormal minded individuals.23

Any chance of improving the race or increasing the population of geniuses "can be done only from the ranks of the normal. "24 In other words, the efforts of eugenics

22 Ibid., 744 23 Ibid. 24 Ibid. 53 would find the most profit in addressing the widest possible audience. There were too few at the top and bottom with which to steer society on a course of progress. Another prominent eugenics intellectual, the inventor Alexander Graham Bell, made a similar observation and illustration ofthe population's eugenic potential (Figure 3).

Desirable

Normal

Undesirable

Figure 3. Alexander Graham Bell's makeup ofthe human race. 25

Bell was concerned that the very small percentage ofthe race the "desirable" and

"undesirable" represented (about one percent each by his calculations) was way out of proportion to the amount of attention they were given by eugenicists. Other writers ea­ ger to emphasize the importance of applying eugenics to a broad base of society claimed, "research shows that beyond and above the elimination of the least efficient of the race is the substantial improvement, through the centuries to come, ofthe 90 per cent

25 Alexander Graham Bell, "How to Improve the Race," The Journal ofHeredity 4, no. 4 (1914): 2. · 54 who can not be classed as defective."26 Quoting "the great authority on heredity,"

Davenport, the Los Angeles Times suggested, "every individual possesses multitudes of good and bad traits which it is impossible for any scientific investigation to disclose."27

It would not have made sense and perhaps would have been be impossible, then, to dis­ tinguish the good stock from the bad in the consideration of some eugenics policies.

Critics of a rigid, top-down approach to race progress were also all to happy to point out that eminent men such as Julius Caesar, Napolean, and Saint Paul "were epileptics;"

Chopin, Robert Louis Stevenson and John Stuart Mill suffered from tuberculosis; and,

"neither Pearson nor Galton would on first principles have taken the Mendel family as eugenically promising."28 A wiser course of action would be to address the needs of the industrial working class, which was rapidly growing, and according to some, in need of help to prevent racial degeneration.

Eugenicists could help separate the population of the industrial working class between those that deserved protection and those that did not. As one example of the criteria used to distinguish between the two, Wendy Kline argues the emphasis of eu­ genicists that wished to control (limit) the procreation of certain individuals were most interested in those women who did not live up to or challenged Victorian rules of sexual prudery. As long as the state sterilized "sexually promiscuous women, particularly those

26 Willet M. Hays, "Constructive Eugenics," American Breeders' Magazine 3, no. 1 (1912): 6. 27 "Failure of eugenics," Los Angeles Times, February 16,1914. 28 "Human race improvement: collecting data for plan ofpractical eugenics," Los Angeles Times, May 12, 1912; Kevles, In the Name ofEugenics, 41. 55

of a working-class or immigrant background," they did not need to segregate them.29

Eliminating their ability to have children applied only to a particular group of socially

deviant women. Labor laws, consistent with eugenic principles, protected the larger

share of workingwomen who were considered the "deserving poor."

Evidence of the hereditary potential of industrial working people was occasion­

ally highlighted in the results of so-called "better baby" contests. At one such event

during the First Race Betterment conference in Battle Creek, Michigan, for example, the

winner's father was a simple taxi cab driver. 30 In New York City, the child of a Russian

immigrant was "voted a perfect specimen of babyhood." The report on baby Evelyn and

her mother, Mrs. Bessie Pallor, emphasized her "humble quarters...among congested

.East Side tenants" and the "noise, smells and crowds" of her neighborhood, which sug­

gested the challenges but not the impossibility of her prize.31 Both cases offered exam­

ples ofworkers or immigrants not fully condemnable by eugenic ideology.

Ward's concept of "latent genius" provided some sociological weight to counter

the argument that the working class was intellectually inferior and thus unredeemable. He ·

responded to men like Ross and Roosevelt who feared the "population is being to so great

an extent recruited from the base," by claiming, "such apprehensions are due to the almost

universal error that those classes are inferior to the middle and higher classes. "32 In his

book, Applied Sociology, he insisted that the "lower classes of society· are the intellectual

29 Kline, Building a Better Race, 49. 30 "Perfect babies awarded prizes," Los Angeles Times, January 13, 1914. 31 Margaret W. DePeyster, "Immigrant babe voted perfect, Russian mother never heard ofeugenics or hygiene," Los Angeles Times, May 17, 1913. 32 Ward, "Eugenics," 753. 56 equals of the upper classes."33 He did recognize an "immense...difference in knowledge" that was a result of access to ''tools of the mind" and "products of human achievement," basically education and resources. 34 A lack of intellectual achievement on the part of the less fortunate signaled to Ward the inability of society to "transmit the products of achievement," which he called "social transmission," from one generation to the next.35

"The great sullen, stubborn error," Ward attempted to disprove was that somehow differences in class were a result of differences in "intellectual capacity, something existing in the nature of things, something preordained and inherently inevitable."36 Put another way, Ward argued that it was a mistake to think biology was destiny.

Another objection to the consideration of eugenic-supported labor laws is how an ideology like eugenics that seemed to be based on a socially lassiez faire attitude of

"survival of the fittest" comported with a deliberate policy of protecting the vulnerable working class. Indeed, some eugenicists were quite clear that government relief and charity organizations were downright dysgenic. "By the lavish provision of [settlement] homes, asylums, and charitable agencies of all sorts," Professor of political economy F .H.

Hankins wrote, "we make it easy for the lazy, the shiftless, the immoral, and the defective to multiply apace; and by the growth of sanitary and medical science we are preserving a

33 Lester F. Ward, Applied Sociology: A Treatise on the Conscious Improvement a/Society by Society (Boston: Ginn & Company, 1906), 95. 34 Ibid., 95. 35 Ibid., 96. 36 Ibid. 57 larger and larger proportion of those whom nature would pronounce unfit. "37 But not all eugenicists agreed with such an uncharitable assessment of social reform work.

At its core, eugenics itself was a process of artificial selection and interference with natural selection. In fact, "eugenics regarded unfettered industrial capitalism as dysgenic"38 Man modified his environment to such a degree that there was no longer an

"operative natural agency" that culled the weak.39 Eugenicists such as Ross argued that natural selection could not function properly because the system had become so cor­ rupted that there were no "natural" conditions in modem society.40 Therefore, because

"natural selection is no longer working in the society, just as competition is no longer working in the economy, the state is needed to regulate human reproduction, just as it is needed to regulate industry."41

Eugenic Philosophies in Labor Law

In as much as there was a concern about who should be the object ofeugenics re­ form there was a debate about how to implement eugenic principles. The most common terms of the debate revolved around the question of whether change would be most suc­ cessful by addressing one's heredity or environment-an age-old debate of"nature versus nurture." The most obvious approach, of course, was attempting to manipulate heredity or, the "germ plasm," as it was sometimes called. The rediscovery of Mendel's law in

37 F.H. Hankins, "The Declining Birth Rate," The Journal ofHeredity 5, no. 8 (August 1914): 366. 38 Leonard, "Mistaking Eugenics," 212. 39 "Race Culture," The Independent, February 24, 1910. 40 Leonard, "Mistaking Eugenics," 227. 41 Leonard, "'More Merciful and Not Less Effective," 697. 58

1900 led many eugenicists to insist on the primacy of biology and heredity. In 1910,

Karl Pearson stated, "I think it quite safe to say that the influence of environment is not one-fifth that of heredity, and quite possibly not one-tenth of it. There is no real com­ parison between nature and nurture; it is essentially the man who makes his environ­ ment, and not the environment which makes the man."42 Even with so certain a statement however, Pearson acknowledged that the science of eugenics was still devel­ oping and thus he qualified that statement by saying, "I will not dogmatically assert that environment matters not at all.',43 And, as was shown previously, his proposal to protect mothers was not a purely hereditarian approach. David Starr Jordan also expressed a degree of uncertainty about the best way to affect race improvement in an article he wrote discussing prenatal health care. "What we know," of environmental conditions,

"gives no ground for making them a basis of eugenic teaching.''44 Yet, Jordan also admitted that what scientists knew about how traits were transmitted through the gen­ erations was very limited. That uncertainty fostered an ideal among reformers motivated to implement eugenics in the spirit of Progressivism that improvement in hygiene, edu­ cation, or working conditions could contribute to the cause.

One of the most assertive books on the primacy of biology was Applied

Eugenics by Paul Popenoe and Roswell H. Johnson, two leading researchers and propa-

42 Karl Pearson, "The Influence of Environment," The Journal ofHeredity 5, no. 1 (January 1914): 37. For further discussion of Pearson's view on biology and environment, see A. Gabtley, "A Study in Eugenic Genealogy," American Breeders' Magazine 3, no. 4 (1912): 242. 43 Pearson, "The Influence of Environment," 37. 44 David Starr Jordan, "Prenatal Influences," The Journal ofHeredity 5, no. 1 (January 1914): 38. 59 gandists for the movement. Popenoe and Johnson directly refuted Lamarck's theory of acquired characteristics and stated "human traits, mental as well as physical, are inher­ ited [via biology], in a high degree."45 However, even they revealed some doubt about the certitude of a strictly biological approach to race improvement. In their discussion of natural selection (chapter six), they looked closely at the population of Pittsburgh, Penn­ sylvania and found that it like "all large cities in civilized countries, breeds from the bottom." "Recalling that intelligence is inherited," they lamented, "that like begets like in this respect, one can hardly feel encouraged over the quality of the population of

Pittsburgh, a few generations hence." Nevertheless, not all appeared to be lost. "These illiterate foreign laborers are, from a eugenic point of view, not wholly bad ... Some of these ignorant stocks, in another generation and with decent surroundings, will furnish excellent citizens. "46 Thus, the possibility of improvement for the less fortunate working class remained viable, despite the ascendancy of heredity as a purely genetic science, decent surroundings were still worth attention.

Havelock Ellis (1859-1939), a leading Brit~sh sexologist and eugenicist, saw an evolutionary connection between the social reforms of his day and eugenics. In his book, The Task of Social Hygiene, Ellis described the "great movement of social re­ form" as a progression of stages. It began with attention to the most horrible conditions of urban life such as pollution and citizen. safety followed by legislation to curb the gross abuses of industrialization including restraints on workingwomen and children.

45 Paul Popenoe and Rosewell H. Johnson, Applied Eugenics (New York: Macmillan, 1918), 33, 114. 46 Ibid., 139. 60

Finally, "most fundamental of alL. .bestowing due care on the future mother."47 Ellis called his "organized and systematic" approach to uplift and improvement "Social

Hygiene," which he described as ''the study of those things which concern the welfare of human beings living in societies. "48 The problem as he saw it was that most social re­ form sought only to deal with "bad conditions as they occur," whereas social hygiene

"aims at prevention" and was "based on a growing knowledge of those biological sci­ ences" such as eugenics.49 "Eugenics constitutes the link between the Social Reform of the past, painfully struggling to improve the conditions of life, and the Social Hygiene of the future," he wrote.50

A lack of knowledge about genetics was not the only explanation for eugenically informed action. A revival in the belief of acquired characteristics, or "neo-Lamarck­ ism," helped many observers understand and react to the changing conditions of indus­ trialism. 51 Even adherents of Darwin could "still accommodate a Lamarckian view of inheritance, which offered support to the reform variant of eugenics."52 The need

Popenoe and Johnson felt to discredit Lamarckism perhaps implies it was a view still held by many in their field. "The current belief of biologists at the present time," ac­ cording to a professor of animal breeding, "is that heredity is the ability of living matter to react or respond to its environment. Certain definite processes take place in the vital

47 Havelock Ellis, The Task ofSocial Hygiene (Boston: Houghton Mifflin, 1912), 10. 48 Ibid., V. 49 Ibid., 1. 50 Ibid., 31. 51 Stem, Eugenic Nation, 53. 52 Leonard, "Mistaking Eugenics for Social Darwinism," 222. 61 functions of an individual in response to certain causes or stimuli which exist in the en­ vironment or surrounding matter."53 In such a scenario, the environment is the control­ ling· interest and the genetic composition or adaptation of an organism is the adjustment to those conditions.

Arguments for the environmental or social constraints on individual ability were well developed. Ward, as we have seen, was unequivocal in his belief that "class dis­ tinctions in society are wholly artificial, depend entirely on environing conditions, and are in no sense due to differences in native capacity."54 In Ward's article critiquing

Galton, he described the obstacles to race improvement as "nurture, pure and simple ...It is the environment that holds the hereditary impulse down. Man has no power over he­ redity. The only thing he can affect is the environment. It is true that man can utilize the laws of heredity. But the utilization of any law of nature consists simply in so adjusting the environment that the law shall operate in his interest. "55 Even as late as the 1920s, there was not a strict hereditarian approach to eugenics and many Progressives "worked simultaneously for environmental and eugenic reforms...because most lay people still held some version of belief in the inheritance of acquired characteristics."56 Many prominent eugenicists also retained that belief.

53 Edward N. Wentworth, "On the Nature of Heredity," American Breeders' Magazine 2, no. 4 (1911): 310. 54 Ward, Applied Sociology, 101. 55 Ward, "Eugenics," 748. · 56 Carole R. Mccann, Birth Control Politics in the United States, 1916-1945 (Ithaca: Cornell University Press, 1994), 102. 62

California horticulturalist Luther Burbank, whose own experiments in plant breeding yielded varieties of peaches, plums, and the Russet Burbank potato, wrote in his book The Training ofthe Human Plant, that his "studies have led me to be assured that heredity is only the sum of all past environment, in other words environment is the architect of heredity; and I am assured of another fact: acquired characters are transmit­ ted."57 By the time of the Second Conference on Race Betterment held in conjunction with the Panama-Pacific International Exposition in 1915, Burbank had tipped his opinion in favor of genetics, but he coupled selection with environment as part of a

"two-pronged strategy. "58

Other supporters of eugenics saw legitimacy on both sides of the debate and fa­ vored a program that balanced efforts to change a population's nature and improve envi­ ronmental conditions. "Any living thing is the product of an interaction between its inheritance and its environment," asserted Dr. H.E. Jordan, a Professor of embryology at the University of Virginia. "A discussion of the relative values in development of he­ redity and environment would be senseless. Both heredity and environment are essen­ tials; essentials cannot be compared."59 The ABA advised its readers that, "improvement through heredity may at first be painfully slow. The improvement from education and from an ever-growing altruism will for some time be more rapid. " 60 Historian Kathy

Cooke suggests others "believed that environmental reform would hasten the arrival of

57 Burbank, The Training ofthe Human Plant, 81-2. 58 Stem, Eugenic Nation, 52. . 59 H.E. Jordan, "Heredity as a Factor in the Improvement of Social Conditions," American Breeders Magazine 2, no. 4 (1911): 251. • 60 "The Field of Eugenics," American Breeders' Magazine 2, no. 2 (1911 ): 141. 63 an evolutionarily advanced state that would no longer require charity."61 The settlement houses Professor Hankins complained about were only a temporary expediency in the progress towards racial improvement.

On occasion, reformers did specifically link eugenics and harsh working condi­ tions. Mrs. Charles Sumner Simms of the Tennessee Federation of Women's Clubs ex­ plained an important function of her eugenics efforts to identify "the best babies at the

State Fair" was to "impress on the world the barbarism of keeping prospective mothers working in factories after a certain period." Simms acknowledged that "the earnest ef­ forts of the settlement workers" should receive ample credit for the help they provide to workingwomen, ''yet so much [relief] is needed in cases where the future of the race is in jeopardy." 62

The disagreement over issues of nature and nurture is crucial to acknowledge in the context of labor legislation. Many advocates of race improvement believed that improving one's environment, by reducing a worker's exposure to harmful working conditions for example, was a perfectly consistent effort with eugenic ideology. It may be less obvious to the modern observer because, as Cooke notes, historians have downplayed the "role of nurture in early American eugenics."63 It is precisely during this time she notes, as states

61 Kathy J. Cooke, "The Limits of Heredity: Nature and Nurture in American Eugenics before 1915," Journal ofthe History ofBiology 31, no. 2 (1998): 273. 62 "Mrs. Simms and eugenics," Los Angeles Times, August 31, 1913. 63 Cooke, "The Limits of Heredity," 263. 64 increasingly turned to legislation to protect workers with an eugenics rationale that, ''the eugenics movement ...exhibited more concern for environmental circumstances.',64

At a child welfare meeting in 1914, Dr. Caleb Williams Saleeby, a leading eugenicist, author, and student of Francis Galton, harshly criticized his colleagues who he accused of following a "better dead" approach to race improvement. The idea that a person who lacked a certain degree of genetic pedigree was of no use to the human race struck Dr.

Saleeby as completely counterproductive. This was the logical conclusion of a strictly hereditarian approach to eugenics: biology became destiny. Rather, Saleeby urged those in attendance that "while heredity does bear on the problems of health, vitality and lon­ gevity, it is not ... all essential and all important. Environment is quite as important." He held his ideological opponents accountable for "blocking attempts to improve the con­ ditions of human life on the ground that such attempts interfered with natural selection."

But he knew "conditions initiated in the slums and public houses are not natural. .. They are hideously unnatural." The best course of action was for the nation to prioritize public health and extend the government's authority over maternity and motherhood. The arti­ cle ended with a statement by Saleeby that concluded, "all this is fundamental eugenics and is far more easily feasible than any question of breeding for genius or of deciding who shall marry whom and who shall not marry whom. "65 The importance of environ­ mental reforms, a recognition that modem society perverted the laws of natural selec-

64 Ibid., 265. 65 '"Better dead' idea attacked," Los Angeles Times, August 2, 1914. 65 tion, and the need for government intervention in matters of race preservation were all present in Saleeby's remonstration.

Supporters of eugenics in the United States like Saleeby "with strong Lamarck­ ian inclinations," Cooke observes, "believed that by improving the environment of the less educated, the criminal, and the poor, one could not only raise their quality of life in the short term but also improve the biological character oftheir progeny. "66 What seems clear from the eugenics literature in the first two decades of the twentieth century is that there was not a cohesive and comprehensive plan for race improvement that achieved a consensus. On the contrary, many scientists and intellectuals acknowledged that the study of eugenics was still relatively new and there was little agreement on many basic

"facts" such as the mechanisms of heredity or in which direction to proceed. Some pro­ ponents were eager to restrict marriage or perform sterilizations but others suggested more practical, feasible ideas such as collecting genealogical data from which conclu­ sions might be drawn or policies devised. Furthermore these moderate eugenicists ar­ gued it was not possible to "draw a hard and fast line" between the fit and unfit. "It is easy to pick out extreme cases," observed one such eugenicist, "but between these lies a great mass of population, neither especially fit nor especially unfit:"67 Ignoring the ninety to ninety-nine percent that made up the population of the U.S. to pursue a race of geniuses was, as Davenport claimed, pure theory.

66 Cooke, "The Limits ofHeredity," 269. · . 67 "Human race improvement: collecting data for plan ofpractical eugenics," Los · Angeles Times, May 12, 1912. 66

Thus those practical eugenicists would have seen the protection of working women as an important step in preserving and improving the race. The legislators and judges who devised and decided eugenically-informed immigration or sterilization poli­ cies were also the ones who eagerly supported labor laws for women, And as chapter three will demonstrate, the strength and vigor ofthe race those laws sought to protect were steeped in the language and purpose of eugenics 67

Chapter 4

THE CALIFORNIA WOMAN'S EIGHT-HOUR LAW

As chapters one and two have demonstrated, the importance of eugenics in

California in the context of Progressive Era reforms and the social problems its adherents attempted to address dovetails with many of the same conditions and responses of labor legislation. In 1911, the California legislature passed the Woman's Eight-hour Law which limited the number of hours a woman could work in certain occupations in a day to eight and in a week to forty eight. A group of southern California hotel owners immediately challenged the law but the state supreme court upheld the it 1912 and then by the United

States Supreme Court in 1915. This chapter will examine the legislative and judicial history of the California Woman's Eight-hour Law to illustrate the eugenic connections specifically. Nationwide, the emergence of a justification for hours laws or restrictions on night work for women based on their ascribed role as the procreators of future generations can be clearly seen as such laws, beginning in Massachusetts in 1876, were enacted, challenged, and upheld. Thus this chapter will begin be tracing the history of race preservation arguments in the relevant state courts and U.S. Supreme Court decisions.

Hours Laws and Race Preservation Before 1915

Prior to the California case there was a long history of court cases related to laws restricting the number ofhours a woman could work that prefigured eugenic arguments.

The judicial history of race preservation is important for two reasons. First, the concept of stare decisis ("let the decision stand"), or precedent, is fundamental to jurisprudence in the United States. Adherence to precedent provides the legal system with a stability 68 and consistency that is crucial for a society grounded in law .1 Furthermore, decisions made by the courts become binding on all lower courts and thus promote uniformity in a law's application. Second, the emergence of the justification for labor laws restricting a woman's working hours coincides with that of the eugenics movement and the rising popularity ofProgressive Era social reform.

Laws that protected the health and safety of all workers-men and women-were very much a part of the Progressive Era agenda. The dirty, dangerous, poorly paid occu­ pations of industrial America made the need for protective legislation a top priority for reformers. Leading labor advocates, such as the National Consumers' League, empha­ sized legal avenues of protection because they believed the state and federal constitu­ tions skewed the liberty of contract principle in favor of the employer. In an 1898 landmark case, Holden v. Hardy, which upheld a restriction ofhours on male workers in dangerous mining operations, the Supreme Court recognized that employers and em­ ployees "do not stand upon an equality, and that their interests are, to a certain extent, con:flicting... [Employees] are often induced by the fear of discharge to conform to regulations which their judgment, fairly exercised, would pronounce to be detrimental to

1 The concept ofprecedent, of course, does not require absolute adherence. The doctrine ofstare decisis, "is an authority, or binding precedent, in the same court or in other courts ofequal or lower rank, in subsequent cases, where 'the very point' is again in controversy; but the degree ofauthority belonging to such a precedent depends, of necessity, on its agreement with the spirit ofthe times or the judgment of subsequent tribunals upon its correctness as a statement ofthe existing or actual law." Henry Daniel Chamberlain, The Doctrine ofStare Decisis: Its Reasons and Its Extent (New York: Baker, Voorhis, 1885), 19. Quoted in Robert von Moschzisker, "Stare Decisis in Courts ofLast Resort," Harvard Law Review 37, no. 4 (1924): 409. 69 their health or strength. In such cases self-interest is often an unsafe guide."2 Protection advocates were quick to agree with the opinion that contracting parties were not equal at the bargaining table. "The so-called 'right' to contract for a day of any length," re­ marked Josephine Goldmark, "is purely theoretical. The worker in fact obeys the com­ pulsion of circumstance."3 Clara Beyer, an economist with the U.S. Department of

Labor, did not mince words when she commented that "it is ludicrous to talk of their freedom to choose .. .lt would be more to the point to talk ofthe freedom of employers to exploit their workers.',4

The development of the race preservation argument in labor law, which reached its Constitutional apogee in Muller, had its earliest roots in the Massachusetts Supreme

Court more than thirty years earlier. The case of Commonwealth v. Hamilton Mfg. Co., decided in 1876, ruled that a law limiting the number of hours a woman could work in a day to ten or in a week to sixty was permissible.5 Although the state lawmakers passed the law to protect the public health and welfare, the legal arguments at question in the case revolved around prior contractual obligations between the defendant and the state.

The importance of the case for future rulings on similar laws was the precedent it set upholding laws that restricted a woman's liberty of contract.

The issue of a woman's freedom of contract did not come before the courts after that in any meaningful way for almost twenty years. When it did, in the case ofRitchie v.

2 Holden v. Hardy, 169 U.S. 366 (1898). 3 Goldmark, Fatigue and Efficiency, 244. 4 Clara Mortenson Beyer, "Do Women Want Protection? What is Equality?" The Nation 116, January 31, 1923, 116. 5 Commonwealth v. Hamilton Mfg. Company, 120 Mass. 383 (1876). 70 lllinois in 1895, the case set a contrary precedent to Hamilton that labor advocates such as

Florence Kelley of the National Consumers League railed against for many years. 6 As in the Commonwealth decision, the issue of protecting a woman's reproductive function was not the central issue or defense in the case. In its opinion striking down the Illinois law, the court issued a challenge to legislators contemplating protective laws. "The mere fact of sex," it warned, "will not justify the legislature in putting forth the police power of the

State for the purpose of limiting her exercise of those [occupational] rights." Such an action could only be sustained if, ''the courts are able to see, that there is some fair, just and reasonable connection between such limitation and the public health, safety or welfare proposed to be secured by it."7 In other wo;ds it was incumbent upon the legislature to make the case that a law that abridged such a fundamental right of citizenship had a defensible connection between the problem and its legal remedy.

In 1900, the Pennsylvania Superior Court upheld a law in Commonwealth v.

Beatty that prohibited women from working longer than twelve hours in a day. The court's written opinion forcefully asserted a woman's reproductive potential as a justifi­ cation for upholding the law. "Surely," it stated with a tone that suggested its obvious­ ness, "an act which prevents the mothers of our race from being tempted to endanger their life and health by exhaustive employment can be condemned by none save those who expect to profit by it. "8 There appeared a quick succession of rulings after the

6 Ritchie v. The People of the State of Illinois, 155 Ill. 98 (1895). 7 Ibid., 113. 8 Commonwealth v. Beatty, 15 Pa. Super. 5 (1900), 18. 71

Beatty decision that placed the importance of a woman's future offspring at the van­ guard of defense strategy.

In 1902, the Washington State Supreme Court ruled in Washington v. Buchanan that a ten-hour law for women was valid based on a concern for "succeeding genera­ tions." After going to great lengths to define the extent of a state's police power, that is, the authority vested in government to regulate a citizen's liberty, the court asserted that the negative health consequences of the occupations covered under the law, "would deleteriously affect any great number of women who are the mothers of succeeding gen­ erations." In addition to the explicit connection between the concerns of race preserva­ tion and labor law, the ruling also provides some insight into the intellectual context that informed the decision. In the court's rationale relating the public welfare to the law's specific prohibitions, the justices asserted that, "it is a matter of universal knowledge with all reasonable intelligent people of the present age" that poor working conditions compromised a worker's health. Apparently it was, in part, those well-known facts that provided much of the necessary evidence to support the law with a race preservation ra­ tionale. Finally, the Court asserted, "Law is, or ought to be, a progressive science."9

Although the judge did not cite the specific knowledge being referenced (presumably because it was too obvious to bother), the widespread belief in science and the bur­ geoning eugenics movement was influential in disseminating the types of "universal knowledge" the judges cited.

9 State of Washington v. Buchanan, 29 Wash. 602 (1902). 72

In that same year, the Nebraska Supreme Court also upheld an hours and night work law in the case Wenham v. Nebraska. Again, the justices repeated the claim that the physically exhausting work that was proscribed after so many hours could "wreck the constitutions and destroy the health of women, and render them incapable of bearing their share of the burdens of the family and the home." 10 The opinion was vague about what those burdens may have been, but it became another precedent that referenced a woman's social duty rather than a strictly legal argument-her liberty of contract or the equal protection clause of the Fourteenth Amendment, for example.

New York had two crucial labor laws tested in court in 1905 and 1907. In 1905, the U.S. Supreme Court heard the case Lochner v. New York, which ruled on a law that limited the number of hours male bakers could work; and, in 1907, the New York

Supreme Court heard the case, People v. Williams which ruled on an hours and night work restriction for women. In both cases, the respective courts struck down the laws in question. The Lochner decision is central to the study of Constitutional jurisprudence, particularly for labor law historians. But that ruling dealt primarily with issues of con­ tract liberty and although there were certainly gendered aspects to the decision, it did not deal directly with women or to the question of race preservation. However, it did have relevance for cases that dealt with restrictions on women as an example of how legally and, perhaps eugenically, men differed from women.

Despite the validity of race preservation as a legal argument to uphold hours laws, the Court did not apply that rationale in Lochner. The Court asserted for one that,

10 Wenham v. State ofNebraska 65 Neb. 395 (1902), 405. 73 unlike the law in question decided by the Holden case, there was no "emergency provi­ sion" in the New York law that would allow for the "slightest violation." Further, the justices were not convinced that the occupation of a baker was particularly dangerous or that the bread a tired baker might make was unhealthful to the public. More importantly,

Justice Peckham dismissed the argument that the law was in "the interest of the state that its population should be strong and robust" as an extreme contention that had no relation to a man's reproductive role. He repeatedly emphasized that a man, suijuris or independent in the eyes of the law, must be free from legislative interference except in the most obvious cases where the individual's health was at risk. 11

The New York Supreme Court struck down the women's labor law in the

Williams case, in part, because the legislature did not make explicit the connection be­ tween the means (a law limiting a woman's liberty of contract) and the ends (protection of the public welfare). Justice Gray explained, "I find nothing in the language of the section which suggests the purpose of promoting health, except as it might be inferred that for a woman to work during the forbidden hours of night would be unhealthful."12

In other words, the judges were looking for a rationale that would explain why a reduc­ tion in hours would be desirable. There was not a legal argument for abridging a woman's freedom to work since the Constitution provided its implicit protection, so there had to be a social consequence to working long hours-protecting the public's

11 Lochner v. State ofNew York, 198 U.S. 45 (1905). 12 People v. Williams, 189 N.Y. 131 (1907), 134. 74 safety or health, for example. The supporters of Oregon's hours law in Muller would heed that warning to provide clear and convincing evidence of the law's purpose.

The same year that the U.S. Supreme Court ruled in the Lochner case, the Oregon state legislature passed a law that stated that "no female [ shall] be employed in any mechani­ cal establishment, or factory, or laundry in this State more than ten hours during any one day." 13 A factory inspector cited Curt Muller, a laundry owner, for breaking the law and eventually he appealed his conviction to the U.S. Supreme Court. It was probably the

Lochner decision that gave Muller the most hope as he filed his own Supreme Court ap­ peal. However, it has been pointed out, "he was battling a law that in 1905 had counter­ parts in at least 17 other states."14

To argue in defense of the law, Oregon enlisted the help of the National Con­ sumer's League (NCL). The NCL, in turn, secured the services of future Supreme Court justice, Louis D. Brandeis. To help prepare the case, Brandeis worked with Josephine

Goldmark, who was now the publications secretary and chairperson of the Committee on Legislation and Legal Defense of Labor Laws for the NCL. The League was founded in 1899 as an industrial reform organization and by 1910, it counted fifty-four chapters in fifteen states. 15 Although it began by espousing grassroots organizing and action, the

NCL quickly turned to state-sponsored regulation to accomplish its goals. By 1913,

13 Muller v. Oregon, 208 U.S. 412 (1908), 416. . 14 Ronald K.L. Collins and Jennifer Friesen, "Looking Back on Muller v. Oregon." American Bar Association Journal 69, no. 3 (March 1983): 295. 15 National Consumers' League, Eleventh Annual Report (New York: National Consumers' League, 1910), 19. 75

Josephine Gold.mark had involved the NCL in the defense of seven cases of protective labor legislation for women. 16

In a collaborative effort for the Muller case, Brandeis and Gold.mark compiled what is known as the Brandeis Brief At one hundred thirteen pages, it would pale in comparison to its successors, but in 1908, it was an unprecedented legal strategy. It greatly influenced future litigation strategy and offered the justices information about the legitimacy of the legislature's use of the police power to restrict a woman's workday that they could not overlook. 17 The Brandeis Brief was a collection of excerpts from eco­ nomic, industrial, medical, and sociological studies that examined the lives and conditions of workers from several western countries. 18 It inundated the reader with one clear point: shorter workdays for women were advantageous to society. There was no other way to lessen the suffering and the deleterious effects ofindustrial work were in:lisputable.

The legal arguments in the brief were scant. Gold.mark and Brandeis began by citing the protective legislation that currently existed in the various states and two court

16 Josephine Goldmark, "Report ofthe Committee on Legislation and Legal Defense ofLabor Laws," in Fourteenth Annual Report, by the National Consumers' League (New York: National Consumers' League, 1913), 31. · 17 Kermit Hall, The Oxford Companion to the Supreme Court ofthe United States (New York: Oxford University Press, 1992), 85. · 18 Louis D. Brandeis [and Josephine Gold.mark], Curt Muller, plaintiffin error v. State ofOregon. Brieffor defendant in error (New York: National Consumers' League, 1908), 18. The brief has indelibly been branded the Brandeis Brief, unfortunately however, Brandeis was not the author. "In the Oregon case, the credit for the preparation of the brief was due only by Miss Josephine Goldmark. Mr. Louis D. Brandeis had given his services to carry this case to the Supreme Court ofthe United States, provided the brief was prepared for him." National Consumers' League, Ninth Annual Session: Proceedings Held in Wilmington, DE, 3 March I 908 (New York: National Consumers' League, 1908), 2. 76 precedents that stood in their favor. The remaining one hundred pages was an attempt to document the collective knowledge of the United States and Europe regarding the proper number of hours women should work. The common theme was that "long hours of labor are dangerous for women primarily because of their special physical organiza­ tion. In structure and function women are differentiated from men." 19 A share of the testimony submitted directly addressed women's biological difference-invariably ex­ pressed in terms of inferiority.

The effects of fatigue and standing all day were especially hannful to women. One doctor concluded ''woman is badly constructed for the purposes of standing" due to the

"peculiar construction of the knee" and ''the delicate nature of the foot."20 Another doctor reported the difficulties women experience due to their reproductive functions, ''the natural congestion of the pelvic organs," for example.21 Several of the doctors commented on industry's effects on the workers' children and made characteristically Lamarckian arguments. They concluded that women, enfeebled by the harsh demands of factory work, would bear unhealthy children with devastating consequences for the race. The concern over race suicide was prominent in much ofthe rhetoric surrounding the debate.

The Court's opinion in Muller repeated many of the arguments found in the

Brandeis Brief. In its unanimous decision, Justice Brewer asserted "That woman's physical structure and the performance of maternal functions place her at a disadvan­ tage ...is obvious. This is especially true when the burdens of motherhood are upon her."

19 Brandeis Brief, 18. 20 Ibid., 19. 21 Ibid., 23. 77

The work women in industry perform, "tends to injurious effects upon the body, and, as healthy mothers are essential to vigorous offspring, the physical wellbeing of woman

becomes an object of public interest and care in order to preserve the strength and vigor of the race."22 The paragraph that quote was drawn from alone cited a woman's reproductive function four times.

Supporters of Oregon's ten-hour law-and that was almost everyone-hailed the

court's decisiol) upholding the law. Florence Kelley's reaction that proclaimed it the

"most valuable work that had been done by the National Consumers' League" echoed throughout the country.23 The Muller decision carried great legal and social weight for women and their participation in the workforce. In that single decision, the Supreme

Court, for the first time, wrote sex and gender roles into the liberty of contract interpre­ tation of Constitutional law and made the health of a woman's body a special interest of the state.24 Furthermore, by investing a woman's "future offspring" with so much legal value, as one historian sharply noted, the Court stated "that women's interests in em­ ployment are so weak that they are easily trumped by the interests of beings who may

22 Muller v. Oregon, 421. 23 National Consumers' League, Ninth Annual Session: Proceedings Held in Wilmington, DE, March 3, 1908 (New York: National Consumers' League, 1908), 2. 24 Before 1908, only two other cases reached the Supreme Court that dealt explicitly with issues of sex and gender. The first was Bradwell v. Illinois in 1873 in which Myra Bradwell sued the State of Illinois for denying her a license to practice law. The Court rejected her suit on the grounds that employment was not an absolute right protected by the privileges and immunities clause ofthe Fourteenth Amendment. Two years later, in Minor v. Happersett the Court rejected a Missouri woman's demand to register to vote based on her claim that it was a right of citizenship. 78 never exist."25 The high court's approval of Oregon's law encouraged seventeen more states to pass similar restrictions over the next nine years. 26

The California Woman's Eight-Hour Law and Case

The elections of 1910 marked a dramatic shift in California away from "machine politics" and the control of state government by the Southern Pacific Railroad and to­ wards a more progressive spirit of reform and voter accountability. The Outlook, a pro­ gressively-oriented magazine, described 1910 as a "political revolution" and "a complete overturning" of the establishment that "fundamentally changed the structure of

State government."27 Almost immediately, lawmakers under the leadership of Governor

Hiram Johnson, set about reforming government and enacting social reform.

The pace of reform was frenetic and "most major reforms were pushed through during a five-year period, 1910 to 1915."28 Measures such as the direct election of

United States Senators, the restoration of the Australian (secret) ballot, and perhaps most famously, the initiative, referendum and recall were all passed during this first ses­

sion of the newly elected progressive majority.29 Another characteristically Progressive piece of legislation that the "machine" had previously defeated in the 1909 legislative

session but passed with a comfortable majority in 1911 was a constitutional amendment granting women suffrage. By a combined vote of99-1 7 the Assembly and Senate passed

25 Becker, "From Muller v. Oregon to Fetal Vulnerability Policies." 1232. 26 Kessler-Harris, In Pursuit ofEquity, 32. 27 WilliamKent, "Johnson of California," The Outlook(February 10, 1912): 313. 28 Starr, Inventing the Dream, 199. . 29 Franklin Hichbom, Story ofthe Session ofthe California Legislature of1911 (San Francisco: Press ofthe James H. Barry Co., 1911), 50-123. 79 the amendment and it was approved by voters that same year making California the fifth state in the union to grant women suffrage.30 The Coast Seamen's Journal, a leading labor publication, considered the 1911 legislature an unprecedented success. Lawmakers passed bills that increased oversight by the state's Labor Commissioner, improved safety conditions on railroads and at ·construction sites, appropriated funds for tubercu­ losis research and compulsory school for children of certain ages.31 Franklin Hichborn, a reporter for the Sacramento Bee and the author of in-depth summaries of the California legislature during the Progressive era, called the Woman's Eight-hour bill one of "prin­ ciple successes of Labor at the 1911 session."32

Hichborn' s story of the 1911 session included an extensive history of the eight­ hour bill. The idea for an hours law originally sprung from three different sources si­ multaneously. In one case, the Women's Union Label League (WULL), with the support of wealthy social reformer Maud Younger brought the idea of an eight-hour law for women to the annual convention of the California State Federation of Labor (CSFL) in

1910, which adopted a resolution of support.33 Younger was an active reformer for the rights and protection of workingwomen. She ~ampaigned with waitresses agitating for better pay and she founded the Wage Earners' Equal Suffrage League to connect sup-

30 Ibid., 329. 31 Ibid., 227-230. 32 Ibid., 235. 33 Ibid., 246. CSFL, Proceedings: Eleventh Annual Convention, 9. A draft ofthe law proposed at the convention was much more ambitious than the law that was eventually passed by the legislature. Resolution No. 7 specified certain industries encompassed by the law but concluded the list by declaring: "or any other establishment in this State employing females." 80 port for suffrage with women who worked.34 Republican Senator Benjamin F. Rush sponsored the bill that was the result of the work by the WULL, CSFL and Younger. 35

Separately, Thomas F. Griffin, a Democratic but firmly progressive assemblyman from

Modesto, proposed a ten-hour law and Republican Assemblyman R.J. Callahan of

Oakland offered a nine-hour law. 36 In coordination with the other legislators, Griffin revised his bill to eight hours a day or forty-eight hours a week and introduced the Cali­ fornia Woman's Eight-hour Labor bill (AB 248) to the Assembly on January 10, 1911.37

As the bill worked its way through the legislature, it met fierce resistance from employers who asserted many familiar arguments about the economic consequences of regulating their workforce: "business would be greatly injured; that women would be thrown out of employment; that those who continued at work would have their wages reduced."38 The Los Angeles Times took an unfriendly position against the bill for many ofthose same reasons. Editorial and opinion pages railed against the proposed law as the handiwork of a powerful union lobby. "It is generally known," wrote Captain Leslie T.

Peacocke, a prolific film writer and director, "that this law has been brought into force at the instigation of the labor unions as a means ofputting a great number of women out of work and of compelling employers of labor to put men in their places. "39 Captain

Peacocke predicted that what it was really going to do was to force employers to replace

34 Starr, Inventing the Dream, 258. 35 Hichbom, Legislature of1911, 247. 36 · Ibid., 248. 37 Cal. Stats. p. 437 (1911). 38 Hichbom, Legislature of1911, 252. · 39 Leslie T. Peacocke, "The eight-hour law for working women," Los Angeles Times, May 22, 1911. 81 their women workers with Japanese men. Despite labor's "success" with the Chinese

Exclusion Act in 1882, there still existed a virulent anti-Orientalism and, in fact, at their annual meeting in 1911, the CSFL passed a resolution demanding "prompt and adequate measures of protection" in response to Japanese immigration.40 Peacocke may have been closer to the truth with his second prediction as it seems highly unlikely that there were union men lined up outside hotels waiting to replace fired waitresses and cham­ bermaids. "San Francisco labor leaders required him to sign it," accused the Times edi­ torial staff, "so that some thousands of women who are not voters might be forced to surrender their jobs."41 Opponents of the law suggested those companies that employ women would not be able to operate if the workday was shortened to eight hours and thus would replace them. That objection was also without merit given that Governor

Johnson supported the suffrage amendment that passed that same year. Critics of labor unions often accused them of using hours laws for women and children as a wedge to secure their own reduction in hours. Employers testified that a restriction on their ability

(and Constitutional right) to work women more hours than the legal limit being debated would force them to cut wages or relocate their business to another state.42

The opponents of the bill, however, were fighting a tidal wave of approval. Just days after the bill was signed into law, an editorial by Josephine Goldmark appeared in

4°California State Federation of Labor, Proceedings: Twelfth Annual Convention (California: Allied Printing, 1911), 40. 41 Editorial, Los Angeles Times, March 27, 1911. 42 "Minimum hours for women: legislation that cost many females their jobs," Los Angeles Times, December 21, 1913; "Lower wages or the exodus," Los Angeles Times, May 20, 1913. The Survey, another progressive weekly magazine, that hailed the bill as "a notable ad­ vance in the protection of working women" and highlighting how far ahead of the east coast and middle west California was in the progress of labor law. 43 The CSFL, during its annual meeting that year, described the Griffin bill as "perhaps the most important labor law ever passed in this State. "44 Organized labor had a series of successes winning an eight-hour day for its members, first through trade union agreements and then by statute for workers "under the authority or direction of any officer of the state. "45 The

CSFL based their support of the law for women on "physiological, humanitarian and economic grounds," adding the element of a worker's biology and suggesting an interest in their role in reproduction in addition to the typical economic arguments.46

In a newspaper account of a hearing on the bill in front of the Senate Committee on Labor, Capital, and Immigration, supporters argued that "much would be done to­ ward preserving the health of the future mothers of the race in California." The argu­ ments by business were less important than "putting a stop to race suicide." Thomas

Griffin also testified ''that it protects the health of women. Griffin said that the majority of mothers of to-morrow are the work girls of to-day, and, that the Nation may be pre­ served, the health of mothers-to-be must be preserved." The hearing also featured a statement by Hanna Norton, a laundry worker who also asserted unregulated hours were

"the greatest evildoer to woman's health and is directly responsible for race suicide."

43 Josephine Goldmark, "Eight hours," The Survey 25 (March 25, 1911): 1055. 44 CSFL, Proceedings: Eleventh Annual Convention, 80. 45 Eaves, A History ofCalifornia Labor Legislation, 198-206. 46 CSFL, Proceedings: Eleventh Annual Convention, 80. 83

Quoting Norton, the article injected some drama into the proceedings: "And then she asked: 'Ifyou do not pass this bill, Senators, how many eyes and how many fingers do you suppose will be pointed toward you saying: If this had been a law we might have been a mother?",47

The Assembly approved the bill unanimously, 72-0, and the Senate passed it by a vote of 34-5.48 Governor Hiram Johnson signed the "Griffin bill" on March 22, 1911.

On May 24, 1911, two days after the law went into effect, Frank A. Miller, proprietor of the Glenwood Hotel in Riverside, was arrested for compelling his head waitress Emma

Hunt to work nine hours in one day. Miller, backed by an association of hotel owners that were eager to test the constitutionality of the case, intentionally worked Hunt over the legal limit in order to orchestrate his arrest. 49

After a lower court judge found him guilty and he appealed the decision to the

Superior Court in Riverside county. Miller's primary defense was to argue that the law created and discriminated against a class of women workers. It arbitrarily distinguished between those who worked in hotels and were thus subject to the law's provisions and those women that did the exact same type of work in similar establishments such as boardinghouses and canneries. Superior Court Judge F.E. Densmore agreed that the legislature did not have the authority to single out women who worked in hotels, re-

47 "Women ask for short hours," The Sacramento Bee, February 17, 1911. 48 Hichborn, The Legislature of1911, 258. · 49 W.R. Williams, "Eight hour law tested," Los Angeles Times, June 1, 1911. In an article printed in The San Francisco Call shortly after the law went into effect, State Labor Commissioner John P. McLaughlin, was quoted as saying he only expected trouble from "Southern California hotel men." May 22, 1911. 84

versed Miller's conviction, and invalidated that particular portion of the law. 50

Densmore' s ruling was concerned primarily with the grounds on which a legislature

. might regulate a class of people but he also framed his opinion in some familiar lan­

guage. In the introduction, he wondered whether "the effect of such a law is to handicap

toiling womanhood in her struggle for existence."51 Allowing for a certain amount of

dramatic, rhetorical flair, it is notable that the judge described the legal challenge in

evolutionary terms. The San Francisco Call, in its report of the ruling, judged the race

preservation aspect noteworthy and reprinted that portion of the opinion that cited a

woman's role in preserving "the strength and vigor ofthe race."52

Despite Judge Densmore's ruling, however, Miller was arrested again on June

12, for requiring Ms. Hunt to work nine hours. Rather than pay the fifty-dollar fine, he

sought a writ of habeas corpus from the California Supreme Court (which had original

jurisdiction over such matters).53 Supporters of the law submitted two amici curiae, or

"friends of the court" briefs. The first one, by San Francisco attorney William Denman,

countered in detail the Petitioner's successful argument in the lower court that the law

50 "Superior Court knocks big hole in new eight-hour law for women," Los .Angeles Times, June 11, 1911. 51 Ibid. 52 "8-hour law for women is legal," The San Francisco Call, June 11, 1911. 53 In the Matter ofthe Application ofF.A. Miller for a Writ ofHabeas Corpus, 162 Cal. 687 (1912), 691. Hereafter cited as Ex Parte Miller. The newspaper accounts or court opinions do not fully explain this legally odd turn ofevents, but it is possible that the hotel owners were not satisfied with a Superior Court ruling and wished to have the law's constitutionality determined by a higher court. 85 unfairly created a separate class of workers.54 The second brief, coauthored by Thomas

Griffin, the law's original sponsor (and himself formally a judge), documented the legal history of hours laws and supplied the Court with evidence on the necessity ofthe law.

After beginning with an obligatory defense of the state's police power to regu­ late a citizen's employment rights, Griffin explained that, "While the courts have held that the right of the State to limit the hours of labor ofmen is confined to dangerous and unhealthy employment, the courts that have passed upon similar laws regulating the hours of labor of women have taken a broader view and have held that the interests of the State in the welfare offuture generations justifies restrictions on woman's right of contract, which would be unconstitutional if applied to men. "55 Somewhere between the

Women's Union Label League meeting hall where Maud Younger first discussed an hours law with wage-earning women and the courtroom where its constitutionality was defended, the point of the law shifted to a eugenically-informed goal of race preserva­ tion. The subject of the law moved from the actual worker to her children. The brief af­ firmed the gender expectations for women and attached it to the justification for regulation: "As every woman is a prospective mother, the courts have recognized the full power of the Legislature to protect her health and well-being."56 "If this protection be not enacted for the sake of women," Griffin stated as the logical conclusion, "then it

54 William Denman, In the Matter ofthe Application ofFrank A. Miller, For a Writ ofHabeas Corpus, Amicus Curiae, California Supreme Court, 1911, volume 5152. 55 Thomas F. Griffin and Leon Yanckwich, In the Matter ofthe Application of Frank A. Miller, For a Writ ofHabeas Corpus, Amicus Curiae, California Supreme Court, 1911, volume 5152, 14. [my emphasis] 56 Ibid., 17. 86

must be enacted for the sake of future generations ... The best way to attain the end,

which is the protection of future generations, is through the shortening of the work­

day. "57 The brief also provided testimony about the specific dangers to future genera­ tions. Quoting an 1871 report from the Massachusetts Bureau of Labor on the "progres­

sive physical deterioration" of factory work, Griffin pointed out that, "it is well know that like begets like, and if the parents are feeble in constitution, the children must also

inevitably be feeble. Hence, among that class of people, you find many puny, sickly, partly developed children; every generation growing more and more so. "58

On May 27, 1912, the court upheld Miller's conviction and declared the law

constitutional. The justices determined the law was a reasonable use of the state's police power for the "promotion and preservation of the health and welfare of the human race."59 The court took the petitioner's right to make contracts and the worker's liberty to work very seriously and spent a considerable portion of the opinion addressing the claim that the law abridged those fundamental freedoms. Protection of the public wel­ fare was directly connected to the protection of workers and for women in particular,

"the burden of child-bearing, and, consequently, the health and strength of posterity" was a consideration the law could take into account.60

Miller appealed his case to the U.S. Supreme Court and the national significance of the case prompted California's Attorney General, Ulysses S. Webb, to enlist the help

57 Ibid., 73-75. 58 Ibid., 74. 59 Ex parte Miller, 697. 60 Ibid., 695. 87 of Brandeis and Goldmark, the legal team behind the successful defense of Oregon's ten-hour law in Muller v. Oregon. 61 Brandeis and Goldmark presented a case to the court for Miller that was very similar to the one in Muller. They argued that the hours a woman worked "had a direct relationship to women's health, and hence to the health of the race as a whole."62 There was also a connection, they suggested, between the num­ ber of hours a woman worked and "the rapid decline in reproduction ofthe older Ameri­ can stocks."63 Besides the additional domestic work a woman was responsible for,

Brandeis and Goldmark claimed that time a woman would be free from work for "the development of mind and body for wifehood and motherhood, and hence insures the increased intelligence and strengthening of the race through the mother."64 All of these arguments-the preservation of the race, a fear of race suicide or degeneration, and the role of a mother in raising future generations-were objects of concern for eugenicists.

It appears that the Court agreed to hear the case, despite the clear precedent es­ tablished in Muller, in response to the difference in hours the California law stipulated

(eight in a day rather than ten) and the exceptions of certain related occupations that

Judge Densmore had originally overturned. Neither of those objections proved to be convincing. By a unanimous decision (9-0), the Court affirmed Miller's conviction and

61 Goldmark collaborated with Brandeis until he was appointed to the Supreme Court in 1916 and then with Felix Frankfurter (who also was appointed to the Supreme Court in 1939) in the defense of several other protective labor law cases including Ritchie v. Wayman, 244 Ill. 509 (1910); Bunting v. Oregon, 243 U.S. 426 (1917); New York v. Schweinler Press, 214 NY 395 (1915). 62 Miller v. Wilson, 236 U.S. 373 (1915), 377. 63 Ibid., 3 78. 64 Ibid. 88 the law's constitutionality. Writing for the Court, Justice Hughes quoted the Muller de­ cision at great length regarding the "considerations relating to woman's physical struc­ ture, her maternal functions, and the vital importance of her protection in order to preserve the strength and vigor ofthe race. "65

Given the importance of precedent and the success of Brandeis in the Muller case, it should not come as any great surprise that Thomas Griffin employed the same tactic or similar arguments in the state supreme court. The use of race preservation ar­ guments in his amicus brief does not ipso facto prove eugenics was a wellspring of in­ spiration. However, this case placed in the long arc of race preservation arguments that one can find in labor law does suggest that eugenics, as part of a cultural context and encompassing similar values and prescriptions for improvement, was more pervasive than is currently accounted for in the literature.

65 Ibid., 380. 89

Chapter 5

CONCLUSION

In her summary of eugenic reforms implemented in Great Britain, Diane Paul notes that "eugenicists were extremely effective in popularizing a new Galtonian vocabulary ... that had consequences far beyond programs of eugenical selection. It shaped policy in respect to medicine, law, and education."66 I would assert that the same is true about the influence of eugenics in American culture. Eugenics was a source of inspiration and language for many reformers in the Progressive Era that facilitated an exchange of ideas and made its application to issues ranging from immigration to labor law possible. Eugenics reflected the modern impulses of science, progress in the organization of industry and society managed by trained experts, and an expansion of government regulation.

Reform-minded individuals of the Progressive Era did not orient themselves around single issues and eugenicists were not focused entirely on sterilization or immigration. In a chapter of Applied Eugenics, "The Eugenic Aspect of some Specific

Reforms," Popenoe and Johnson examined efforts such as the limits on child labor, compulsory education, a minimum wage, mother's pensions and feminism. It was their contention that "nearly every law and custom of a country has an influence direct or remote on eugenics. "67 Eugenics was a part of a culture of progress and uplift founded

66 Paul, Controlling Human Heredity, 76. 67 Popenoe and Johnson, Applied Eugenics, 352. 90 in the promise (and perils) of industrialization and bolstered by a growing faith in

science to explain and solve the challenges ofmodernity.

Eugenicists that favored a pragmatic approach to questions of who might most

benefit from race preservation and the methods that would reach the widest possible population were ones that were also evident in the debates over women's labor laws.

That is not to say support for these laws, the California law in particular, was not moti­ vated by the economic interests of labor, the genuine protective impulses of a reform­ minded middle class, or ·the desire to reaffirm a gender hierarchy that many might have thought was crumbling. It was all of those things in varying degrees at different times.

However, the language and ideas of eugenics in the Miller case and earlier labor law

precedents is unmistakable. 91

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