There’s a lot of talk lately about a new federal minimum wage. I thought this would be a good time not only to ask the question, is it constitutional, but to look at a couple of supreme Court cases about it from our history.
While my goal is not an extensive review of minimum wage laws in this country, their existence is not exactly new. Back in 1918 the Congress passed a law that became known as the The Minimum Wage Act of Sept. 19, 1918. I say it became known because the title of the bill is rather long.
Adkins v. Children’s Hospital
An Act To protect the lives and health and morals of women and minor workers in the District of Columbia, and to establish a Minimum Wage Board, and define its powers and duties, and to provide for the fixing of minimum wages for such workers, and for other purposes.
The Minimum Wage Act of Sept.19, 1918
Some of you may be asking yourself why Congress was making laws for D.C.? Because, as a federal city and seat of the federal government, the District of Columbia is run by Congress.
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States,
U.S. Constitution, Article I, Section 8, Clause 17
As the full title states, the legislation would establish a board to fix minimum wages for women and minors. This board was empowered to, among other things:
SEC. 8. That the Board shall have full power and authority: (1), To investigate and ascertain the wages of women and minors in the different occupations in which they are employed in the District of Columbia; (2), to examine, through any member or authorized representative, any book, pay roll or other record of any employer of women or minors that m any way appertains to or has a bearing upon the question of wages of any such women or minors; and (3), to require from such employer full and true statements of the wages paid to all women and minors in his employment.
SEC. 9. That the Board is hereby authorized and empowered to ascertain and declare, in the manner hereinafter provided, the following things: (a), Standards of minimum wages for women in any occupation within the District of Columbia, and what wages are inadequate to supply the necessary cost of living to any such women workers to maintain them in good health and to protect their morals; and (b), standards of minimum wages for minors in any occupation within the District of Columbia, and what wages are unreasonably low for any such minor workers.
The Minimum Wage Act of Sept.19, 1918
Sound familiar? This is the same reasoning used to establish minimum wage laws today. I’m not going to take the time to deal with the Fourth Amendment violations of searches without a warrant, but focus on the issues in these cases. Let’s start with Adkins v. Children’s Hosp.
D.C. Children’s Hospital sued Jesse Adkins, a member of the wage board, claiming that the law violated their freedom to contract protected by the Due Process Clause of the Fifth Amendment.
No person shall … be deprived of life, liberty, or property, without due process of law;
U.S. Constitution, Amendment V
While there is no specific contract protection in the Fifth Amendment, you can only be deprived of your liberty to contract as you see fit by due process.
5. That the right to contract about one’s affairs is part of the liberty of the individual protected by the Fifth Amendment, is settled by repeated decisions of this Court.
6. Within this liberty are contracts of employment of labor. In making these, generally speaking, the parties have equal right to obtain from each other the best terms they can by private bargaining.
7. Legislative abridgment of this freedom can only be justified by the existence of exceptional circumstances.
…
11. The Minimum Wage Act of Sept.19, 1918, c. 174, 40 Stat. 960, in assuming to authorize the fixing of minimum wage standards for adult women, in any occupation in the District of Columbia, such standards to be based wholly upon what a board and its advisers may find to be an adequate wage to meet the necessary cost of living for women workers in each particular calling and to maintain them in good health and protect their morals, is an unconstitutional interference with the liberty of contract.
Adkins v. Children’s Hosp., 261 U.S. 525 (1923)
Seems pretty straightforward. You have the liberty to contract, including for employment, and such liberty cannot be deprived without due process of law.
An established course for judicial proceedings or other governmental activities designed to safeguard the legal rightsof the individual.
due process, The Free Legal Dictionary
Just a few years later though, the supreme Court would backtrack on this opinion.
West Coast Hotel Co. v. Parrish
In 1913, the State of Washington passed an act entitled “”Minimum Wages for Women”. This act set minimum wages for women and minors within the state. Similar to the Washington, D.C. law, this law established a board to set the wages and conditions under which women and minors could be employed. Elsie Parrish, a chambermaid, sued her employer to recover the difference between what she was paid and the state’s minimum wage. The trial court found for Ms. Parrish’s employer, but that decision was overturned by the State of Washington Supreme Court. (Parrish v. West Coast Hotel Co., 185 Wash. 581). West Coast Hotel Co. appealed the opinion of the Washington State Supreme Court, relying on the Adkins v. Children’s Hospital opinion. They also complained that the law violated the Fourteenth Amendments prohibition on states making laws that deprive someone of liberty without due process:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law;
U.S. Constitution, Amendment XIV, Section 1
The case was decided by the supreme Court in 1937, just shy of 14 years after the Adkins case. In this instance, the court upheld Washington’s minimum wage law. The reason why is very instructive.
1. Deprivation of liberty to contract is forbidden by the Constitution if without due process of law, but restraint or regulation of this liberty, if reasonable in relation to its subject and if adopted for the protection of the community against evils menacing the health, safety, morals and welfare of the people, is due process.
West Coast Hotel Co. v. Parrish, 300 U.S. 379
As in the Adkins case, the court notes that deprivation of the liberty to contract without due process is forbidden by the Constitution. However, the court then invents the idea that restraint or regulation of your liberty is permissible if it is “reasonable”. The problem is, nothing in the Constitution says courts can overrule anything, even if they find it reasonable.
The constitutional provision invoked is the due process clause of the Fourteenth Amendment, governing the States, as the due process clause invoked in the Adkins case governed Congress. In each case, the violation alleged by those attacking minimum wage regulation for women is deprivation of freedom of contract. What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation, the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.
West Coast Hotel Co. v. Parrish, 300 U.S. 379
As I’ve already mentioned, the Constitution does not mention the freedom to contract, but the freedom of restraint of liberty except by due process of law. The West Coast Hotel court not only added the power to regulate your rights, it claimed the Constitution “does not recognize an absolute and uncontrollable liberty”. While correct so far, the only limitation the Constituiton places on your liberty is due process, and nothing else. This court was correct when they wrote the phrase “Liberty under the Constitution is thus necessarily subject to the restraints of due process,” which is Constitutional. When they added “and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process” not only were they wrong, they were blatantly and flagrantly violating the Constitution, their oath of office, and the standards of good behavior.
The Constitution does not grant to courts the authority to rewrite the Constitution, neither does it grant them the power to reinterpret it as they see fit. The supreme Court, and in fact all courts, are bound to the actual words of the Constitution.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Constitution, Article VI, Clause 2
Conclusion
And since the preservation of the sacred fire of liberty, and the destiny of the Republican model of Government, are justly considered as deeply, perhaps as finally staked, on the experiment entrusted to the hands of the American people.
George Washington, First Inaugural Address, 1789
By allowing this abridgment of our rights, and by allowing those we hire to exercise our sovereign power to let this violation pass, we have allowed not only the courts, but governments at all levels to place themselves above the supreme law of the land. We have allowed those governments to transform themselves from servants of the people to their masters. We have extinguished the sacred fire of liberty and crushed the republican model of government that was entrusted to us. So when we slump under the onerous burdens of overbearing government regulation, when we grope in the dark, searching for the light of liberty, when we long for the days of self-government, remember it was We the People that let that fire go out.
