The Epic, Surprisingly Sexist Fight That Brought the Minimum Wage to America

Guaranteeing workers 25 cents an hour took two decades, a public scandalized by prostitution, a states'-rights rebellion, a Great Depression, a Supreme Court battle, and a lot of patriarchy.

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Collier's Weekly, May 8, 1937

For a fourteen-year period in American history, minimum-wage laws were officially verboten in every last state of the union, having been declared unconstitutional by the Supreme Court on April 9, 1923. The case, Adkins v. Children's Hospital, concerned a Washington, D.C., law that established a minimum wage for women and children employed within the city. Two appellants challenged it: a hospital that employed a number of adult women, some at wages below the minimum; and a 23-year-old woman employed by the Congress Hall Hotel as an elevator operator. Earning $35 per month plus two meals each day, the elevator operator avowed that her "work was light and healthful, the hours short, with surroundings clean and moral," and that her employer would be glad to retain her, as she ardently wished, but only at her present wage.

Justice George Sutherland wrote the majority opinion, concurring with the appellant's argument that a minimum wage for women and children "authorizes an unconstitutional interference with the freedom of contract," in violation of the Fifth Amendment's due process clause. Social-justice advocates regarded the decision as a major blow and an indefensible act of judicial activism. In ensuing years, it would frustrate at least a dozen state legislatures and multiple presidents, and help fuel a historic attempt to undermine the U.S. Supreme Court. It would also be hailed by its defenders as a sensible defense of individual liberty in employment. 

What's largely forgotten are the early feminists who hailed the 1923 decision as a heartening victory. They'd been perturbed, fifteen years earlier, by the decision in Muller v. Oregon, a case that pitted a laundry owner against a state law that forbade working female employees longer than 10 hours per day. Justice David Brewer wrote in his majority opinion that the labor protection law passed constitutional muster because "history discloses the fact that woman has always been dependent upon man," and like a minor, she requires "special care that her rights may be preserved.... In the struggle for subsistence she is not an equal competitor to her brother.... She is properly placed in a class by herself, and legislation designed for her protection may be sustained, even when like legislation is not necessary for men and could not be sustained."

When Justice Sutherland struck down the minimum wage for women and children -- and helped that 23-year-old keep her elevator job -- he also repudiated the sexist logic of that earlier case:

The ancient inequality of the sexes otherwise than physical, as suggested in Muller, has continued with 'diminishing intensity.' In the view of the great -- not to say revolutionary -- changes which have taken place since that utterance, in the contractual, political and civil status of women, culminating in the 19th Amendment, it is not unreasonable to say that these differences have now come almost, if not quite, to the vanishing point... We can not accept the doctrine that women of mature age require or may be subjected to restrictions upon their liberty of contract which could not lawfully be imposed in the case of men under similar circumstances. To do so would be to ignore all the implications to be drawn from the present day trend of legislation, as well as that of common thought and usage, by which woman is accorded emancipation from the old doctrine that she must be given special protection or be subjected to special restraint in her contractual and civil relationship.

Suffragist Alice Paul, reacting to the decision in The Survey magazine, wrote that "One can feel, at last, the world is beginning to realize that women are adult human beings." But Mary Anderson, another contributor, thought differently: "The Supreme Court decision rendering the minimum wage law in the District of Columbia unconstitutional is a decided step backward for the women workers and for the industrial progress of our country. It means going back to the time when employers could pay wages to their women employees in accordance with their own judgment."

Take sides in their disagreement as you will. What's clear, in hindsight, is that the 1923 decision outlawing the minimum wage and the Supreme Court's 1937 reversal bookend a period worth revisiting as President Obama pushes Congress to adopt a new $9-per-hour floor on labor. We're still having many of the same arguments minimum wage advocates and opponents had back then. But it is fascinating and clarifying to see them unfold in a different cultural context -- one that upsets our preconceived narratives, dislodges our ideological assumptions, and reminds us how surprisingly, complicatedly intertwined this issue once was with women's rights.

Catholics, Progressives, and 'A Living Wage'

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Pope Leo XIII, who wrote that employers are morally obligated to pay workers enough to live "in reasonable and frugal comfort."

As the court cases described above show, the early political fights about a minimum wage didn't affect all laborers, as we might expect. Rather, like the first laws limiting hours worked, they were paternalistic in nature, and applied only to women and children. It was widely assumed that no one would or could impinge upon the ability of an adult male to negotiate his own wage.

That isn't surprising.
The American colonies practiced indentured servitude as its earliest European settlers arrived. The United States perpetuated chattel slavery until 1865. The notion that fairness to labor required "a living wage" wouldn't even become a politically viable belief until the industrial revolution transformed how Americans conceived of work, and how capital and labor related to one another.

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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