John G Bell


Fall '03 - Gomez & Unsel

Week 10 – Response Paper

Divided Lives: The Economic Foundation of Women's Inequality

A. Synopsis

The period surrounding Muller was one of specific social conflict over the place of women in society. Within the women's movement, satisfaction with the institutionalization of women as potential and future mothers was a divisive issue. The creative, but conforming, Brandeis briefs provided convenient and acceptable reasoning which the judicial system was able to accept and support because it did not challenge the social norm of women as a separate class, connotatively dependent and therefore in need of the paternal protection of the law. The Brandeis briefs were an “entering wedge” into judicial thought, and served a purpose to open the way for future progressive arguments pushing toward sexual equality under the law.

B. Response

Those who benefit from progressive gains must not sit satisfied with their gain in power, but cast around to see who else they can pull up farther out of political and social oppression.

The Muller decision and the Brandeis strategy were products of their time, and should be recognized as such. They both created advances withing the context of the social and judicial climate of their time. To judge them in hindsight as not living up to the standards that came after them in their own time is disingenuous at best, self-destructive of progressive ideals at worst. To make a critique on the past as a reflection of the possibility of the future is a strategy that works exceedingly well for the pro-business strategists.

To say that the only meaningful progress is total progress ignores the reality of contending views that do not live in a vacuum, by themselves, without opposition. To say that the only progress is total progress is also a denial of future changes in perception and analysis, because the future will have a new vantage point from which to determine the extent of progressive vision.

The male unionists, like the AF of L, were guilty of a certain kind of myopia that failed to recognize that one's condition is not the best for one's self nor others. They were probably guilty of taking advantage of the restrictions and limitations on women's ability to compete in the work force, but primarily they were guilty of being satisfied. They became part of the problem when they were willing to settle for a certain amount of negotiating power over the struggle and solidarity of progress for all workers and their rights. This satisfaction with gaining power is inherently prone to failure as a consistent strategy.

This myopia was not exclusive to the unionists in relation to the struggles surrounding Muller. The United Farm Workers tried to hold on to their power by refusing to ally with the opposition to have the agricultural worker exemption removed from the labor act. More recently, the workers in the high tech industry failed to take advantage of their bargaining power during a period of labor scarcity to organize. Both the farm and technology workers were undermined, and their positions of power were dismantled. These strategies fail because the opposition is not satisfied and will consistently seek out ways to undermine the power of their own opposition. Further, these strategies fail because times change and fortunes reverse, sometimes because of active manipulation of the market and other times simply because strategies that do not change are constantly challenged by newer, creative ones. Holding on to power is not a sufficient strategy to maintain power.

The corporations learned this lesson. The subversion of the 14th amendment by corporations was in finding ways to use the progressive gains to pull corporate citizenship forward. The use of the 19th amendment to dismantle the gains of Muller was a pro-business tactic. In order to compete, a criteria with which business is amply familiar, they had to use what tools they could to creatively pull themselves forward, to give themselves a competitive advantage.

The Brandeis briefs were an example of this kind of pragmatism about tool use, and the fact that the opposition used the strategy against itself is not so much a criticism of the strategy as it is a criticism of static strategies in general.

At the same time, there's something hugely important in the way that the struggle between the factions of the women's movement still provided the space for a social dialogue about the issues of women's rights. This internal discontent, even when not perfectly or practically aligned with itself, pushed the boundaries of the public sphere to include these issues, and the fact that there were contending factions merely highlights that there are complex and important issues to discuss. The struggles of progressive groups on one level appear self defeating and destructive, but there's an element to that internal struggle which expands and strengthens the space in which general discontent may arise to motivate change.

This discontent in groups, an expression of dissent, is exactly the necessary element to social change that must exist for dissent to foment, like a yeasty catalyst for change, in the general social dialogue. Specific discontent leads to dissent which triggers general discontent over the space between what is and what should be, over social injustice. Whether this general discontent is aligned with the dissent, dissent enlivens and elevates the discourse in the public sphere. This exercise of discontent in groups is a primary building block for much wider social and judicial progress.

C. Questions

The criticism of the ERA was that it would disintegrate the progress made by the advance of protective legislation. However, Title VII has been quite effective at forcing the kinds of changes that would have resulted from the ERA. What the criticism holds is that the ERA would dismantle the compensatory advancement of women, so what if the wording of a new ERA were to include something like: The advantage of a privilege is not removed by this amendment, rather the advantage of privilege to one must be provided to all.

For example, if one person is provided with 2 weeks leave for personal reasons, it isn't the aim to force that person to not be allowed this privilege, but rather to provide that to all the workers. I could even see this being used to creatively against corporate excesses ... normalizing benefits and pay scales, etc ...