Thus to save a theoretical bargaining equality which in fact does not exist, and "individual liberties" based upon a laissez faire theory of government of a former generation, Justice Sutherland is willing to make it forever impossible for Congress to enact a living wage law. Justice Holmes answers the majority by a forceful dissenting opinion: The earlier decisions upon the same words in the Fourteenth Amendment began within our memory and went no farther than an unpretentious assertion of the liberty to follow the ordinary callings. Later that innocuous generality was expanded into the dogma, Liberty of Contract. Contract is not specially mentioned in the text that we have to construe. It is merely an example of doing what you want to do, embodied in the word liberty. But pretty much all law consists in forbidding men to do some things that they want to do, and contract is not more exempt from law than other acts. Without enumerating all the restrictive laws that have been upheld, I will mention a few that seem to me to have interfered with liberty of contract quite as seriously and directly as the one before us. In no uncertain terms, Chief Justice Taft in a separate dissenting opinion similarly combats the ideas of Justice Sutherland. The significance of the decision lies in its farreaching consequences. If the Fifth Amendment prevents Congress from attempting to deal with industrial disputes by wage legislation, the Four teenth Amendment prevents states from enacting similar legislation. If minimum-wage legislation for women violates the constitutional right of freedom of contract, does not maximum hours legislation, in spite of Justice Sutherland's attempt to distinguish them, do the same? "I confess that I do not understand the principle on which the power to fix a minimum for the wage of women can be denied by those who admit the power to fix a maximum for their hours of work," says Justice Holmes. "I perceive no difference in the kind or degree of interference with liberty, the only matter with which we have any concern, between the one case and the other." Our constitutional framework has often been extolled upon the ground that each state furnishes a separate laboratory for social experimentation; in the industrial field, various interesting experiments, such as the Kansas Industrial Court, are being tried out. This decision apparently renders unconstitutional the Kansas Court and, it would seem, makes forever impossible all other legislation along similar lines involving the regulation of wages. Again, the Nineteenth Amendment gave to women the right to vote. Through some unexplained legal legerdemain, Justice Sutherland seems to suggest that this justifies a departure of the Court from the principles embodied in its former decisions sustaining legislation for the protection of women. The implications of the decision are enormous; how far its underlying theory will be carried, only the Supreme Court say. MINIMUM WAGE AND THE CONSTITUTION THOMAS I. PARKINSON American Labor Legislation Review WHILE the country was still inspired by war conditions to subordinate individual rights of liberty and property to the accomplishment of the common good, Congress passed the act of September 19, 1918, providing for the establishment of a minimum wage for women and children in the District of Columbia. The act created a board with power, after full investigation to ascertain and declare . . . 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 If, as the result of such investigation, the board found that any substantial number of women workers in any occupation receive wages inadequate to supply them with the necessary cost of living, maintain them in health, and protect their morals, the board was authorized to call a conference representative of employers, of employees, of the public, and of the board, and this conference was authorized to make recommendations to the board respecting standards of minimum wages for women in such occupation. The board, after reviewing these recommendations and after a public hearing affording interested persons opportunity to be heard, was authorized to make an order requiring all employers to comply with the standard minimum wage recommended by the conference. This duty of the employer to pay all women employed by him at least the minimum wage so fixed was relieved only in the case of a woman worker to whom the board issued a special license authorizing her employment at a less wage because her earning capacity has been impaired by age or otherwise. Violation of the order fixing a minimum wage, except in the case of a woman specially licensed, was made a criminal offense. The board, in the exercise of its power, fixed minimum wages for women of various occupations in the District. Two women, both of full age, one employed by a hospital, the other employed by a hotel, brought suit against the board to restrain it from enforcing its order, on the theory that they would lose their employment if their employers were required to pay the minimum wage. Their contention was that the minimum wage Act was unconstitutional. There is nothing in the federal Constitution which expressly prohibits the enactment of a minimum wage law. On the contrary, the Constitution (Article I, Section 8) provides "that the Congress shall have power. . . to exercise exclusive legislation in all cases whatsoever" over the District of Columbia and also "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers." In view of this broad legislative power which Congress possesses within the District of Columbia, the plaintiffs depended upon Article V of the amendments to the constitution which provides that no person shall be “deprived of life, liberty or property without due process of law." The question in the case then was whether the minimum wage law deprived either the employer or the employee of liberty or property without due process. The employer was not required to employ women, but if he did, he was required to pay the wage fixed. The employee was left free to work if she could find an employer who would pay her the minimum wage. There is no doubt about the rule for the determination of the constitutionality of an act like this. It was stated very clearly in the opinion of the majority of the Court: This Court, by an unbroken line of decisions from Chief Justice Marshall to the present day, has steadily adhered to the rule that every possible presumption is in favor of the validity of an Act of Congress until |