By Julie Lavonne Novkov
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Extra info for Constituting Workers, Protecting Women: Gender, Law and Labor in the Progressive Era and New Deal Years
The discussion in chapter 2 will detail how the tension between liberty and police power emerged as the central focus of claims grounded in due process, outlining the initiation of the constant conflict that would take place between liberty and police power during the entire period covered by the book. Attorneys initially argued over whether the privileges or immunities clause could be used to guarantee particular substantive rights to all citizens, but the Supreme Court foreclosed this debate in the Slaughter-House Cases.
Nonetheless, the passage of the amendment alone was insufficient to initiate the debate; the tension between liberty and police power had a long history, and the Fifth Amendment, which became part of the Constitution in the 1780s, included some of the same language as the Fourteenth. The second shift was the rapid postwar development and disruption of the economy and the subsequent drive to regulate the workplace legislatively. The years between 1873 and 1897 were a time of ferment and change for American workers.
An important factor to note in this process is that none of these actors—not the courts, the lawyers, or the public interest groups—are in complete control. The public interest groups expend resources and research the nodes, but they do not select them. The lawyers interpret them and translate them into legal language, but they shape them through reference to decisions by the courts rather than creating them out of whole cloth. The courts may in a few cases intentionally leave a particular area ambiguous, but more frequently the initial process of creating a node is probably dependent upon the attorneys.