Muller+v+Oregon+_1908_ - Muller v Oregon 289 be paSsed upon...

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Unformatted text preview: Muller v. Oregon 289 be paSsed upon the statute before us. A reasonable man might think it a proper measure on the score of health. . . . Muller 2). Oregon Harlan’s Lochner dissent anticipated the famous “Brandeis Brief” used in this case. As counsel for the state, Louis D. Brandeis justified an Oregon statute limiting women to a ten hour day by utilizing sociological, economic, and physical data. Brandeis skill- fully avoided asking the Court to.specifically overrule Lochner. Instead, he built from Justice Peckham’s Lochner remark that “no law limiting the liberty of contract ought to go beyond necessity” to defend the Oregon law. Justice Brewer delivered the opinion of the Court. The single question is the constitutionality of the statute under which the defendant was convicted so far as it affects the work of a female in a laundry. . . . We held in Lochner v. New York . . . that a law providing that no laborer shall be required or permitted to work in a bakery more than sixty hours in a week or ten hours in a day was not‘as to men a legitimate exer— cise of the police power of the State, but an unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract in relafion to his labor, and as such was in conflict with, and void under, the Federal Constitution. That decision is invoked by plaintifl in error as decisive of the question before us. But this assumes that the difference between the sexes does not justify a different rule respecting a restrictiOn of the hours of labor. In patent cases counsel are apt to open the argument with a discussion of the state of the art. It may not be amiss, in the present case, before examining the constitutional quesfion, to notice the course of legislation as well as expressions of opinion from other than judicial sources. In the brief filed by Mr. Louis D. Brandeis, for the defendant in error, is a very copious collection of all these matters. . . . ' The legislation and opinions referred to . . . may not be, technically speaking, authorities, and in them is little or no discussion of the conStitu- 208 U.S. 412 (1908) tional question presented to us for determination, yet they are significant of a Widespread belief that woman’s physical structure, and the functions she performs in consequence thereof, justify special legislation restricting or qualifying the conditions under which she should be permitted to tail. Constitutional questions, it is true, are not settled by even a consensus of present public opinion, for it is the peculiar value of a written constitu- tion that it places in unchanging form limitations upon legislative action, and thus gives a permanence and stability to popular government which otherwise would be lacking. At the same time, when a question of fact is debated and debatable, and the extent to which a special constitutional limitation goes is affected by the truth in respect to that fact, a wide- spread and long continued belief concerning it is worthy of considera~ tion. We take judicial cognizance of all matters of general knowledge. It is undoubtedly true, as more than once declared by this court, that the general right to contract in relation to one’s business is part of the liberty of the individual, protected by the Fourteenth Amendment to the Federal Constitution; yet it is equally well settled that this liberty is not absolute and extending to all contracts, and that a State may, without ’ conflicfing with the provisions of the Fourteenth Amendment, restrict in many respects the individual’s power of contract. . . . That woman’s physical structure and the performance of maternal func- tions place her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon the body, and as healthy mothers are essential to vigorous offspring, the physical well-being of woman be- comes an object of public interest and care in order to preserve the strength and vigor of the race. Still again, history discloses the fact that woman has always been dependent upon man. . . . The two sexes diifer in structure of body, in the functions to be performed by each, in the amount of physical strength, inthe capacity for long-continued labor, particularly when done standing, the influence of vigorous health upon the future well-being of the race, the self-reliance which enables one to assert full rights, and in the capacity to maintain the struggle for subsistence. This difference justifies a difference in legislation and upholds that which is designed to com— pensate for some of the burdens which rest upon her. . . . For these reasons, and without questioning in any respect the decision in Lochner v. New York, we are of the opinion that it cannot be adjudged that the act in question is in conflict with the Federal Constitution, so far as it respects the work of a female in a laundry. . . . 12W ...
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Muller+v+Oregon+_1908_ - Muller v Oregon 289 be paSsed upon...

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