Expression of resentment against the Supreme Court for its action in declaring unconstitutional the New York State Minimum Wage Law, or arguments to show how and why the legal reasoning of the majority was faulty in this case, are beside the point. The Court, by its long succession of decisions on social legislation, has left us with a condition and not a theory. The opinion of the majority is the law, regardless of what we think the majority ought to think, or what the law ought to be. Let us examine as coolly as we can, in a moment of shock and discouragement, what the situation is, and how it arose.
Congress has no power to regulate hours or wages of persons in manufacturing, mining and most other branches of industry and trade. Such persons are supposed by the Court not to be directly engaged in interstate commerce. In its decisions on the N.R.A. and the Guffey coal law the Court has made this sufficiently clear. The wages, hours and employment conditions of these persons, in the opinion of the Court, are matters of local concern, and in dealing with them the federal government invades rights reserved by the states when the Constitution was framed and ratified. The natural inference would be that the separate states therefore do have the right to regulate hours and wages. With much difficulty, laws establishing maximum hours for women have been passed in numerous states, and have been upheld by the courts. Employers always object to these laws, and frequently defeat them on the ground that interstate competition penalizes those states with the shorter hours. State laws, however, establishing maximum hours for men would undoubtedly be thrown out by the courts. And the states have no power to establish minimum wages either for men or for women. Thus there is no governmental power in the United States, either national or state, to regulate hours and wages generally. The rights reserved by the states are taken away again by the federal Constitution, according to the reasoning of the Court majority.
How does this strange thing come about? The Fifth Amendment forbids the federal government to deprive persons of life, liberty or property without due process of law. The Fourteenth Amendment, adopted after the Civil War to secure the newly established rights of the Negroes, places the same restriction on the action of the states. The Courts have held that "freedom of contract" is one of the liberties protected by these amendments. Numerous states within the past two decades have passed laws forbidding the employment of women at wages below a minimum cost of living. Such a law, passed by Congress for the District of Columbia, was in 1923 held by the Supreme Court to contravene freedom of contract. The Court also held that the passage of a law of this kind did not constitute the "due process" by which, according to the Constitution, persons could be deprived of life, liberty or property. The decision, in other words, assumed that when a woman takes a job, she makes a contract with the employer, and that if the state forbids her employment at wages even below the minimum cost of living, it not only interferes with her freedom of contract, but does so without due process of law. Precious liberty 1 This decision made inoperative the various state minimum-wage laws, except as they might work through publicity or-persuasion. Ten states have laws of this kind.
Subsequently New York State passed a new type of minimum-wage law, in the hope of getting round the Supreme Court's objection. In the District of Columbia case, the Court had pointed out in its opinion that the value of a woman's services to her employer might be below the minimum cost of living. The new law therefore directed the administering authorities to consider the value of the services rendered. In other respects also it took pains to see that the procedure should be as far from arbitrary as possible. Seven states now have laws similar to this. They joined in asking the Supreme Court to sustain the New York law in this case. But the majority decided (the vote was five to four) that these modifications made no difference; that the whole matter was outside the powers of the states.
Anybody who henceforth proposes to do anything by law about hours and wages in general, either for women or for men (though there are still certain exceptions in which action is permitted), must, if he is not to mislead the public, at the same time say what he proposes to do about the Constitution or the Supreme Court or both. As matters stand, the Constitution makes the economic doctrine of laissezfaire the supreme law of the nation. We have a government that cannot govern one of the fundamental factors in the economic and social process. It cannot do so, no matter how many voters want it to do so, and ho matter what good reasons for doing so may be held by those who give the matter careful study. Democracy is balked by the constitutional protection of the liberty of women to work for starvation wages, for wages below the value of the services rendered.
As to the absurdity of this state of affairs, we cannot do better than to quote from the dissenting opinion of Mr. Justice Stone, in which Justices Brandeis and Cardozo joined. (Mr. Chief Justice Hughes disagreed with the majority on somewhat less inclusive grounds.)
There is grim irony in speaking of the freedom of contract of those who, because of their economic necessities, give their service for less than is needful to keep body and soul together. But if this is freedom of contract no one has ever denied that it is freedom which inay be restrained, notwithstanding the Fourteenth Amendment, by a statute passed in the public interest.
In many cases this court has sustained the power of legislatures to prohibit or restrict the terms of a contract, including the price term, in order to accomplish what the legislative body may reasonably consider a public purpose. They include cases which neither have been overruled nor discredited in which the sole basis of regulation was the fact that circumstances, beyond the control of the parties, had so seriously curtailed the regulative power of competition as to place buyers or sellers at a disadvantage in the bargaining struggle, such that a legislature might reasonably have contemplated serious consequences to the community as a whole and have sought to avoid them by regulation of the terms of the contract...
No one doubts that the presence in the community of a large number of those compelled by economic necessity to accept a wage less than is needful for subsistence is a matter of grave public concern, the more so when, as has been demonstrated here, it tends to produce ill health, immorality and deterioration of the race.
The fact that at one time or another Congress and the legislatures of seventeen states, and the legislative bodies of twenty-one foreign countries, including Great Britain and its four commonwealths, have found wage regulation is an appropriate corrective for serious social and economic maladjustments growing out of inequality in bargaining power, precludes, for me, any assumption that it is a remedy beyond the bounds of reason.
It is difficult to imagine any grounds, other than our own personal economic predilections, for saying that the contract of employment is any the less an appropriate subject of legislation than are scores of others, in dealing with which this court has held that legislatures may curtail individual freedom in the public interest...
In the years which have intervened since the Adkins case we have had opportunity to learn that a wage is not always the resultant of free bargaining between employers and employees; that it may be one forced upon employees by their economic necessities and upon employers by the most ruthless of their competitors. We have had opportunity to perceive more clearly that a wage insufficient to support the worker does not visit Its consequences upon him alone; that it may affect profoundly the entire economic structure of society and, in any case, that it casts on every taxpayer, and on government itself, the burden of solving the problems of poverty, subsistence, health and morals of large numbers in the community...
It is not for the courts to resolve doubts whether the remedy by wage regulation is as efficacious as many believe, or is better than some other, or is better even than the blind operation of uncontrolled economic forces. The legislature must be free to choose unless government is to be rendered impotent. The Fourteenth Amendment has no more embedded in the Constitution our preference for some particular set of economic beliefs than it has adopted, in the name of liberty, the system of theology which we may liappen to approve.
Unfortunately, the last sentence quoted from Mr. Justice Stone represents only a minority opinion. The majority of the Court think otherwise, and they are the dictators of our form of government.