Our Republican Constitution by Randy E. Barnett

Author:Randy E. Barnett
Language: eng
Format: epub
Publisher: HarperCollins
Published: 2016-03-03T05:00:00+00:00

This summary was followed by paragraph-length excerpts from dozens of authorities. There “appears to be a general agreement,” said one, “that women are more docile and amenable to discipline; that they can do light work equally well; that they are steadier in some respects.” But, “on the other hand, they are often absent on account of slight indisposition, and they break down sooner under strain.”111 And so the brief went for another ninety turgid pages.

Brandeis’s argument was reminiscent of Justice Bradley’s infamous concurring opinion in the 1873 case of Bradwell v. Illinois.112 When Myra Bradwell, the respected editor of a Chicago legal newspaper, was denied a license to practice law in Illinois, she brought suit claiming that her “privileges or immunities” as a citizen of the United States had been abridged.

The Court denied her claim in a decision announced the day after the Court had declined to protect the rights of New Orleans butchers in the Slaughter-House Cases. As we saw above, for Justice Miller, the Bradwell case was easy. If the Privileges or Immunities Clause did not protect the unenumerated right to pursue a lawful occupation, as the Court held in Slaughter-House, then Bradwell too could not avail herself of its protection.113

For Justice Bradley, however, the case was more difficult. Bradley had dissented in Slaughter-House on the ground that such a right was constitutionally protected. So, in Bradwell, he needed to show why the Illinois restriction was a reasonable exercise of the state’s police power. Because he admitted the need for judicial scrutiny, unlike Justice Miller, Justice Bradley had to assess the merits of Bradwell’s claim.

Like Brandeis, Bradley contended that the restriction on women’s employment was reasonable because women were different. “The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life,” he wrote.114 “The Constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.”115 The only thing that Brandeis offered that Bradley lacked was “scientific” authorities to back up his claims. (Much progressive economic regulation was upheld based on equally dubious “science.”)

While the Slaughter-House Case was a 5–4 decision, Bradwell was decided 8–1. The sole dissenter was Chief Justice Salmon P. Chase. Too ill and weak to pen a dissent, he died on May 7, three weeks after the decisions were announced. But the official report read, somewhat unusually, and perhaps even uniquely: “The Chief Justice dissented from the judgment of the Court and from all the opinions”—including the sexist concurring opinion of Bradley.116

While the Bradwell case and Bradley’s concurrence is rightly considered a blot on the record of the Court, Muller v. Oregon and Brandeis’s brief is still taught as a great progressive and legal realist triumph over formalism. In Muller, the Supreme Court bought Brandeis’s argument that the law was rational because women were the weaker sex,

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