PREFACE ON April 9th, 1923, the Supreme Court of the United States decided, the Chief Justice and Justices Holmes and Sanford dissenting, Mr. Justice Brandeis not participating in the case, that the District of Columbia minimum wage law is contrary to the Constitution of the United States. On October 19th, 1925, the Court, Mr. Justice Brandeis dissenting, held the minimum wage statute of Arizona contrary to the Constitution, "upon the authority of Adkins v. Children's Hospital (261 U. S. 525)," Mr. Justice Holmes requesting that it be stated that his concurrence is solely upon the ground that he regards himself bound by the decision in Adkins v. Children's Hospital. The Supreme Court of Kansas had, meanwhile, held unconstitutional, as to adult women, the Kansas minimum wage statute. No other state minimum wage law has been so declared by any state supreme court. On October 19th, 1925, minimum wage measures were in force in Arkansas, California, Colorado, Massachusetts, Minnesota, North Dakota, Oregon, Porto Rico, Utah, Washington and Wisconsin. Of these four had been upheld by the highest courts of their states, Massachusetts, Minnesota, Oregon, Washington. It is believed that the minimum wage law of Massachusetts differs so essentially from the statutes of the District of Columbia, Kansas and Arizona, hitherto held invalid, that it may be distinguished from all of them. For permission to reprint the comments assembled in this volume, thanks are due to the HARVARD Law Review TEXAS LAW REVIEW ILLINOIS LAW REVIEW THE SURVEY AMERICAN Labor Legislation RevIEW MICHIGAN LAW REVIEW AMERICAN POLITICAL SCIENCE REVIEW UNIVERSITY OF PENNSYLVANIA LAW REVIEW COLUMBIA LAW REVIEW NEW YORK LAW JOURNAL ST. LOUIS LAW REVIEW INTRODUCTION ALL thinking about matters of law and government labors under a fundamental difficulty that legal and political institutions are seldom the simple things that they seem to be upon the surface. What looks to be a simple term may cover a loosely united bundle of diverse things. Reasoning and argument addressed to one of these things may be quite inapplicable to others of them and inapplicable to the whole bundle. Yet one word is used both for the bundle and, very likely, for each of the items that go to make it up. Hence what appears to be cogent reasoning is vitiated. It is reasoning about words, not about the things which those words were meant to designate. Jurists have become aware that the battles which raged in the science of law in the last century over the nature and definition of law were futile because, while the disputants all argued about "law," there was no one simple phenomenon which some of the disputants understood rightly and some wrongly. Instead there was a complex phenomenon. Each party to the controversy seized on some one aspect or one element, took it for the whole, because one word was used indiscriminately for the whole and for each element, and argued confidently about the whole on the basis of the particular element which it had taken for its province. The nineteenth-century debates as to the nature of law were academic. But they illustrate a difficulty which has sore beset judges and lawyers in the application of constitutions, both state and federal. The assumption that "law" was an aggregate of "laws" and nothing more, and that "a law" was a simple idea definitely given to us, made useless much of what was written as to the nature of "law." In the same way an idea that all the legal precepts in our constitutions were of one kind, analogous to and to be applied in the same manner and with the same technique as rules of property defining estates in land, has led to constant dissent in the opinions of our judges in the application of the requirement of due process of law to social legislation. It has produced a chronic condition of decision of constitutional questions by almost evenly divided courts. It has led to vain attempts to determine the reasonable once for all by spinning out a series of definite detailed rules or by establishing hard and fast conceptions. Thus, more than anything else, this misconception of the nature of the legal precepts involved has been the cause behind the repeated and persistent attacks upon the American development of the common-law doctrine of supremacy of law-a doctrine which is the characteristic feature of our polity. It has long been understood that the provisions of our constitutions are not all of one sort. In the federal constitution the provision guaranteeing to every state a republican form of government is held to be addressed to the political departments, not to the judiciary. More than one state constitution contains provisions which obviously are not legal precepts addressed to the courts and designed to be enforced judicially, if need be, in the course of orderly litigation. Thus the Constitution of Virginia declares: That government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community; of all the various modes and forms of governmnt that is best which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration; and whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, inalienable, and indefeasable right to reform, alter or abolish it, in such manner as shall be judged most conducive to the public weal. Also the Constitution of Massachusetts declares: All power residing originally in the people, and being derived from them, the several magistrates and officers of government vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them. Such provisions do not establish legal precepts, to be applied by the courts when statutes claimed to |