views the Bunting case, supra, but distinguishes it as affirming a statute fixing hours of labor, while the statute at bar fixes the amount of wages to be paid and received-"the heart of the contract." It is difficult to understand why the wage term should be so sacrosanct in the eyes of the Court, or why it should be construed as requiring greater emphasis than terms relating to hours of labor. As the Chief Justice puts it, "one is the multipier and the other the multiplicand." Certainly the formidable array of sociological investigations conducted by experts and the legislation in the various states and abroad contained in the brief submitted tended to support the opinion that low wages are as detrimental to the health and morals of women as long hours of labor. But this remarkable collection of scientific data on social and economic reasons for the protection of women in industry impresses the Court as "interesting, but only mildly persuasive." Instead, the Court was persuaded that the act was unreasonable, and therefore unconstitutional, because "the standard furnished for the guidance of the board is so vague as to be impossible of practical application with any reasonable degree of accuracy"; because "morality rests upon other considerations than wages"; because "the inquiry in respect to the necessary cost of living and of income necessary to preserve health and morals presents an individual and not a composite question"; because "the law takes account of the necessities of only one party to the contract"; because the Nineteenth Amendment made revolutionary changes in the contractual, political, and civil status of women, so that the differences between the physical structure of men and women, pointed out in the Muller case, supra, "have now come almost, if not quite, to the vanishing point”; and finally, because the power to fix a minimum wage must necessarily carry with it the power to fix a maximum wage. The Court's concern over the practicability of the law and the wisdom of its enactment to accomplish the end in view is somewhat at variance with the frequently-defined function of the judiciary in this regard. “While the courts must exercise a judgment of their own, it by no means is true that every law is void which may seem to the judges who pass upon it excessive, unsuited to its ostensible end, or based upon conceptions of morality, with which they disagree." Otis v. Otis v. Parker." "The mere fact that a court may differ with the legislature in its views of public policy, or that judges may hold views inconsistent with the propriety of the legislation in question, affords no ground for judicial interference, unless the act in question is unmistakably and palpably in excess of legislative power." McLean v. Arkansas.10 The entire opinion of the Court proceeds upon the assumption that the Act is designed to regulate the transaction between 9187 U. S. 608. 10 211 U. S. 539. two individuals, one of whom is under a legal disability; and this, in the face of the avowed purpose of the statute "to protect women from conditions detrimental to their health and morals," which, by virtue of their maternal functions, means detrimental to the welfare of society in general. Surely, this must of necessity be a composite question. That the law takes account of the necessities of only one party to the contract is true of practically all "public welfare legislation," if the payment of a sweating wage can be accurately termed a "necessity." It is equally difficult to discern how the change in the contractual, political, and civil status of women can affect the physical difference between men and women. Even one so well versed in the art of legal legerdemain as Mr. Justice Holmes is skeptical of women's metamorphosis by the magical Amendment, when he succinctly declares, "It will need more than the Nineteenth Amendment to convince me that there are no differences between men and women, or that legislation cannot take those differences into account." The proposition that power to fix a minimum wage must carry with it the power to fix a maximum wage may be logically true; but the line of distinction here, as elsewhere in the law, is a matter of degree and practical experience. It is submitted that the question whether social and economic conditions warrant this type of legislation is not a question of law, as was first assumed; nor a question of fact simply, but really a question of opinion. It is not for the courts to settle, but must be left to the decision of the legislature. And unless it can be shown unmistakably that the opinion of the legislature as to the need for the social or economic legislation in question is unreasonable, judged in the light of actual conditions as revealed by scientific data, the legislative determination is conclusive upon the courts. Measured by this test as applied in Muller v. Oregon, supra, and subsequent analogous cases, the instant decision is a step backward, to be retraced at the first opportunity. LEGISLATIVE POWER IN THE DISTRICT OF COLUMBIA: THE MINIMUM WAGE ACT EDWIN S. CORWIN American Political Science Review IN Adkins v. Children's Hospital,' the Court, by a vote of five to three, Justice Brandeis not sitting, disallowed the Act of September 19, 1918,2 establishing standards of minimum wages for women and children in all occupations in the District of Columbia, so far as the Act applied to the case of women. The ground of the decision was that the Act violated the freedom of contract, as well as rights of property, protected by the due process clause of the Fifth Amendment. The Court's approach to the question presented is indicated in the following words from Justice Sutherland's opinion: "There is, of course, no such thing as absolute freedom of contract. It is subject to a great variety of restraints. But freedom of contract is, nevertheless, the general rule and restraint the exception; and the 1 261 U. S. 525. |