Public Health, Parens Patriae, and Sex
By Pierre Lemieux
In a Thursday post about public health, I mentioned the parens patriae legal principle, which justifies the state to act toward citizens like a parent toward his or her children. One of the readers who commented, JK Brown, quoted a 1910 book, Popular Law Making, by Harvard law professor Frederic Jesup Stimson:
You can have regulation of the hours of labor of a woman of full age in general employments, by court decision, in three States (Massachusetts, Oregon, and Illinois) … The Oregon case, decided both by the State Supreme Court and by the Federal Court in so far as the Fourteenth Amendment was concerned, after most careful and thorough discussion and reasoning, reasserted the principle that a woman is the ward of the state, and therefore does not have the full liberty of contract allowed to a man. Whether this decision will or will not be pleasing to the leaders of feminist thought is a matter of considerable interest.
We know how that turned out. The mainstream feminist movement allied itself with authoritarian policies that controlled men’s economic freedom too. Instead of liberating women, these feminists worked, and are still working, at enslaving men equally. (As far as work hours are concerned, this blanket statement must be qualified by the likelihood that increasing incomes would have pushed them down anyway.)
John Stuart Mill had already criticized the authoritarian condescendence that, six decades later, Stimson observed toward the fair sex (sorry, I meant “the Nth gender”). In his Principles of Political Economy (1848), Mill wrote discussed the restriction of women’s work hours:
The classing together, for this and other purposes, of women and children, appears to me both … indefensible in principle and mischievous in practice. … Women are as capable as men of appreciating and managing their own concerns, and the only hindrance to their doing so arises from the injustice of their present social position. If women had as absolute a control as men have, over their own persons and their own patrimony or acquisitions, there would be no plea for limiting their hours of labouring for themselves.
Mill may not always have been as consistent a classical-liberal or libertarian as we might wish, but he was quite consistent in his argument that women should be legally and formally equal to men. He argued for women to be legally allowed to compete with men, not to be granted legal privileges or government-enforced affirmative action. In his 1869 book The Subjection of Women, he wrote:
What women by nature cannot do, it is quite superfluous to forbid them from doing. What they can do, but not so well as the men who are their competitors, competition suffices to exclude them from; since nobody asks for protective duties and bounties in favour of women; it is only asked that the present bounties and protective duties in favour of men should be recalled. If women have a greater natural inclination for some things than for others, there is no need of laws or social inculcation to make the majority of them do the former in preference to the latter.
This statement offers a mix of conservatism and liberalism (in all meanings of the term “liberalism”) that is more economically and morally defensible than the promotion of a coercive and artificial equality between women and men, of which the main effect is to increase the state’s own power. It is valid for the formal equality of men and women in all walks of life.