as much toward the close of his opinion, where after pointing out what he considers to be insurmountable difficulties in the way of a fair administration of such a measure, he continues: "The feature of this statute which, perhaps more than any other, puts upon it the stamp of invalidity is that it exacts from the employer an arbitrary payment for a purpose and upon a basis having no causal connection with his business, or the contract, or the work the employee engages to do. The declared basis, as already pointed out, is not the value of the service rendered, but the extraneous circumstance that the employee needs to get a prescribed sum of money to insure her subsistence, health and morals." Such an act he compares with one which should "vest in a commission power to determine the quantity of food necessary for individual support and require the shopkeeper, if he sells to the individual at all, to furnish that quantity at not more than the fixed maximum," and stigmatizes as "so clearly the product of a naked, arbitrary exercise of power that it cannot be allowed to stand under the Constitution of the United States." The view that the Constitution recognizes certain rights of the individual as morally beyond the reach of governmental power is historically incontestable; but it should be noted that it cannot be logically appealed to except in such cases as are beyond the reach of constitutional amendment no less than of ordinary legislative power. For if a power can be vested in a legislature, it may have been, which simply raises again the question, under the due process clause, of reasonable justification. In short, if Justice Sutherland's argument holds, even a constitutional amendment purporting to authorize minimum-wage legislation must be reckoned by the premises of that argument as amounting to a constitutional revolution.10 10 The opinion contains a number of points which do not seem to bear very directly upon the constitutional question. As a good Calvinist, J. Sutherland holds that "Morality rests upon other considerations than wages . . . if women require a minimum wage to preserve their morals, men require it to preserve their honesty"-all of which must be admitted to be pretty good debating, whether it was good law before his Honor spoke, or not. THE UNCONSTITUTIONALITY OF MINIMUM WAGE LAWS SAMUEL A. GOLDBERG University of Pennsylvania Law Review THE Constitution, although it protects a person from being deprived "of life, liberty or property without due process of law," does not define due process. Nor has the Supreme Court laid down any definite rule by which due process can be ascertained other than the statement that when the state or federal government acts unreasonably or arbitrarily it violates the Constitution.2 But it is clear that the exercise of the police power in a reasonable way was not intended to be prohibited. Since the determi 1 Const. Amends., Arts. V and XIV. 2 Yick Wo v. Hopkins, 118 U. S. 356 (1886); Smith v. Texas, 233 U. S. 630 (1914); Chicago etc. R. Co. v. Wisconsin, 238 U. S. 491 (1915). For criticism of the Court's interpretation of the two amendments, see Robert P. Reeder, Validity of Rate Regulations, 248 (1914 ed.). 3 Knoxville Iron Co. v. Harbison, 183 U. S. 13 (1901); Adair v. United States, 208 U. S. 161 (1908), p. 173: “Both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the State in the exercise of those powers and with such conditions the Fourteenth Amendment was not designed to interfere." Mountain Timber Co. v. Washington, 243 U. S. 219, 238 (1917). nation of what is reasonable or arbitrary must be purely a matter of opinion, the validity of statutes, especially those passed under the police power, often depends upon the personal equation of the particular justices their economic and social beliefs. This is particularly true in the case of so-called labor legislation; for then two great social theories are usually brought into conflict. On the one hand we have the belief as expressed by Blackstone that "the public good is in nothing more essentially interested than in the protection of every individual's private rights" and as sometimes tersely stated "that government governs best which governs least." On the other hand, there is the belief that it is better to sacrifice certain phases of abstract individual freedom for the sake of the general welfare which, it is thought, can be obtained under paternalistic legislation. The former doctrine-often characterized as that of laissez faire-prevailed in the recent decision * holding the minimum wage law for women of the District of Columbia unconstitutional.' 6 41 Comm. 139 (Lewis Ed., 1902). The 5 The Minimum Wage Board of the District of Columbia v. The Children's Hospital of the District of Columbia, No. 795, Oct. Term, 1922 (April 9, 1923). "The law provided for the creation of a board to investigate and ascertain the wages of women and minors, and to declare standards of minimum wages for women and minors in any occupation, in order to supply the necessary cost of living to See footnote on p. 180. Supreme Court had been called upon only once before to determine the constitutionality of a minimum-wage law and the result was an equally divided Court. The decision in the recent case was predicated upon the ground that there was an unconstitutional interference with the freedom of contract. 8 9 It is well established that the freedom of contract is protected under the due process clauses. The state courts no less than the Supreme Court have jealously guarded in no uncertain terms this contractual freedom especially where statutes sought to regulate contracts of employment.10 But it has also women workers to maintain them in good health and to protect their morals, and to prevent unreasonably low wages to minors. 7 The vote was 5 to 3. Taft, C. J., Holmes, J., and Sanford, J., dissented. Brandeis, J., took no part in the decision. 8 Stettler v. O'Hara et al., 243 U. S. 629 (1917). No opinion was filed. Wilson v. New, 243 U. S. 332 (1917), upheld the Adamson Act fixing minimum wages for railroad employees. But that was in an emergency and was only a temporary measure pending investigation. Allgeyer v. Louisiana, 165 U. S. 578, 591 (1896); Adair v. United States, supra; Coppage v. Kansas, 236 U. S. 1, 14 (1915): "Included in the right of personal liberty and the right of private property-partaking of the nature of each— is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment. . . ." 10 Godcharles v. Wigeman, 113 Pa. 431, 6 Atl. 354 (1886). The statute required the payment of wages in money. At p. 437, "... more than this it is an insulting attempt to put the laborer under a legislative tutelage, which is not only degrading to his manhood, but subversive of his right as a citizen of the United States. He may sell his labor for what |