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.
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.
Karl Marx's intellectual influence is widely remembered. His ideas about the inevitability of class conflict were predicated partly on the belief that the capitalist system dehumanized workers. An American majority would never agree with his condemnation of free-market economics. But his notion that an economic system ought to be judged by the extent to which it facilitates individual self-realization helped change Western attitudes about what workers were owed.
Pope Leo XIII's influence on the same attitudes is largely forgotten.
His 1891 encyclical Rerum Novarum has a passage that captures both old and new ways of thinking:
Let it be granted then that as a rule, workman and employer should make free agreements and in particular should freely agree as to wages; nevertheless, there is a dictate of nature more imperious and more ancient than any bargain between man and man, that the remuneration must be enough to support the wage earner in reasonable and frugal comfort. If through necessity or the fear of a worse evil the workman accepts harder conditions because an employer or contractor will give him no better, he is the victim of force and injustice.
In 1906, an American Catholic, Father John Ryan, would publish "A Living Wage." Its arguments are now familiar. "That baneful heritage of the eighteenth century, the doctrine that a minimum of state regulation of industry means a maximum of industrial freedom for the individual, no longer counts any considerable number of adherents," he wrote. "Negatively, liberty is absence of restraint; positively, it is the power to act and to enjoy.... As an abstract proposition, the State has both the right and the duty to compel all employers to pay a Living Wage.... its task is not merely to provide men with the opportunities that are absolutely essential to right living, but also to furnish as far as practicable the conditions of wider and fuller life."
Most Americans of that era thought differently.
In 1912, Massachusetts enacted America's first minimum wage law, but it only applied to women and children. Unlike men, they were deemed weak, and in need of protection from employers.
As an empirical matter, their wages were much lower and their working conditions more dismal. There was also social unease with the increasing number of unmarried women working and living alone in the city -- if their wages didn't provide for their sustenance, who knew how they might make ends meet? A woman ought to be allowed to forgo marriage and pursue work outside the home, an article in The Literary Digest conceded, but she must become sufficiently skilled to earn a living wage, "because she has given to society the equivalent of that which she expects in return." Otherwise, she ought to stay in her father's house. Yet "if she has been driven into industry, not because she deems it her vocation to lie therein, but because her father can not support her at home, she is, indeed, the victim of our bad economic system, which has so nearly broken down.... She it is that is in greatest danger of falling into prostitution."
It was widely assumed that no one would or could impinge upon the ability of an adult male to negotiate his own wage.
In 1913, Teddy Roosevelt began speaking out on behalf of a minimum wage, by then a plank in the progressive platform: "We stand, in the Nation and in the several States, for the abolition of child labor; for the reduction of hours of labor for women in industry to eight a day; for workmen's compensation laws; for laws guarding the health of workers in factories, and protecting them against accidents to life and limb; for laws securing proper conditions of life to wage workers; for laws providing that in continuous industry there shall be one day's rest in seven, and three eight-hour shifts a day; and for a law establishing a minimum wage for women workers."
His argument stops just short of mentioning the whorehouse:
The men and women who framed this plank and who advocate it have studied the conditions of life and labor among girls and women in industry and know the dreadful suffering and misery, know the crime and vice, that are produced by a wage that is insufficient to enable the girl or woman to keep body and soul together in surroundings of ordinary decency. Any man who goes to the night session of such a court as the Jefferson Market Women's Night Court in New York City, and who follows up some of the cases brought before the court, will soon learn for himself just what misery and immorality are produced among women when they receive less than a living wage.
Referring to all his proposed reforms, he added, "I would rather see the cost of production enhanced than see it kept low by unpaid labor, physically and morally unhealthy and socially unstable."
By 1913, there were "minimum-wage boards" in eight states, for at that time, instead of an economy-wide wage floor, appeals for higher wages in specific industries would prompt a review by representatives of capital and labor. "In Massachusetts and Nebraska the wage boards have not the backing of the law in enforcing their rulings," The Outlook reported in October of that year. "Instead, they are allowed to publish in the newspapers the names of delinquent employers, and the force of public opinion is relied upon to bring the employers to term."
As another contemporaneous Outlook piece stated, "The enactment of a minimum wage law, without special provision for apprentices, would result in the dismissal of employees who do not earn the minimum wage. Foreseeing this difficulty, it is the plan of the Wage Scale Board to perfect a system of apprenticeship, according to which an inexperienced worker will be employed at a wage below the minimum and advanced periodically until he or she attains the efficiency and wages of an experienced worker, i.e. the minimum wage for that particular occupation."
Some minimum-wage advocates, like academic Victor Morris, acknowledged that the minimum wage would harm the prospects of "crippled, infirm, aged and slow workers," and insisted that was a feature: "It is a highly desirable outcome that they be segregated from the regular group of employees. They are special cases and should be dealt with separately and not be included simply as a drag on the wage rate of the entire group. They constitute a group largely unable to bargain and under normal conditions without state interference are a dead weight hanging on the wage rate."
This progressive attempt at unsentimental, utilitarian management of the economy coexisted with the intellectual heirs of the aforementioned religious thinkers, with Dr. Peter Taylor Forsyth, who thought that a living wage "is an assertion of the Christian principle of the supreme worth of the soul.... A great step is taken to the measuring of a man by what he is instead of by what he has." He added that "if the worker is rewarded on principles of the soul he must put his soul into his work. If he is recognized as a moral personality, he must act as such."
Professor Clifford Thies calls it "an odd coalition of Christian Social reformers and utilitarian socialists.... There were those who viewed minimum wages as a way of providing a living wage to low-wage workers. And there were those who viewed minimum wages as part of a program of keeping the destitute, including the aged, infirm, widowed, and immigrant, segregated and offshore."
The coalition was actually bigger than that.
During his brief tenure, President Harding seemed to call for more generous wages than any viable proposal, saying that "the wage earner's lowest wages must be enough for comfort, enough to make his house a home, enough to insure that the struggle for existence shall not crowd out the things truly worth living for. There must be a provision for education; for recreation and a margin for saving. There must be such freedom of action as will insure full play to the individual's abilities."
By 1923, the year the Supreme Court rejected the minimum wage and let an elevator operator keep her job, there were minimum-wage laws for women and children on the books in 16 states and D.C. (none of them as comprehensive or rigid as today's iterations). Some states repealed their laws; others were struck down in subsequent court cases; still others survived in neutered or dormant form. As the economy boomed and wages rose, public interest in the laws slackened. The issue all but disappeared from the pages of popular magazines for years.
A 'New Deal' for Labor
The Great Depression would transform the way that Americans conceived of capital, labor, and government. Dorothy Bromley captured the era's anxiety in a 1933 Outlook article. "A number of the country's ablest economists were sitting recently in a round-table conference. One of them had just thrown out a starling question," she reported. "'What do you predict, gentlemen,' he had asked, 'if wages and prices keep on chasing each other down hill? You know what is happening. First wages are cut, then buying falls off, then prices are slashed still further to attract trade, wages are reduced again to pare down the costs of production at the lower price level, buying falls off still more, and so the downward spiral goes on and on. Is there any obvious bottom?"
She goes on to report on one politician's response:
In view of 'the evils of reckless wage reduction,' which are going on today in New York state, Governor Lehman has recently sent a message to the Legislature urging a mandatory minimum wage law for women and children, and at this writing, its passage seems assured.
Governor Lehman suggests that the United States Supreme Court, in view of present conditions, might countenance a law that was based, not on a living wage, but on a fair return for services. Such a law, passed by all the states and properly enforced, would be of undoubted economic benefit. It would stop the replacing of men by women in the marginal industries, and it would prevent wages and prices from falling further. It would be, however, only a partial solution, since wages of men as well as women are largely below the level of subsistence today.
It's striking that the subject of a minimum wage is still broached as if applying it to men is inconceivable, even by an author who assumed a vicious circle of falling wages and consumption, writing as President Franklin Roosevelt was proposing sweeping price and wage controls in the National Recovery Act (which would eventually be struck down by the Supreme Court).
The early 1930s were nevertheless a hopeful time for minimum-wage advocates. Seven states pursued and eventually passed minimum-wage measures, all applying only to women and children.
Reformers in almost every state turned their attention to New York and its new "Minimum Fair Wage Act," Albert Parry wrote in a 1935 article for The American Mercury. "The reasons for this are two: New York is the greatest industrial State in the Union, and its act as more and sharper teeth than any similar measure of the earlier days. The act is less ballyhooed but surer of its grounds and aims than any N.R.A. code. The feeling is that with the success or failure of the act in New York, the entire body of legislation of this sort will either triumphantly swim or ignominiously sink." In fact, the law passed the New York legislature and became law.
The Supreme Court struck it down in 1936.
Social-justice crusaders erupted in protest, circulating proposals to strengthen the rights of states to pass legislation of their choosing. When a State Supreme Court upholds a law, they suggested, a super-majority of Supreme Court justices, or even unanimity, should be required to strike it down.
President Roosevelt had already been tangling with the court's conservatives every time that they struck down one of his New Deal laws as an unconstitutional impingement on economic liberty. You'll recall President Roosevelt's brazen court packing threat and its apparent success influencing the justices. As it turned out, striking down the New York minimum wage law in 1936 was the anti-New Deal faction's last stand. A year later, an only slightly changed court reversed itself, upholding a Washington State minimum-wage law. Associate Justice Owen Roberts' uncharacteristic vote formed the 5-to-4 majority dubbed "the switch in time that saved nine."
That case was decided in 1937.
The same year, FDR declared, "All but the hopeless reactionary will agree that to conserve our primary resource of manpower, government must have some control over maximum hours, minimum wages, the evil of child labor, and the exploitation of unorganized labor."
But calling for "minimum wages" still implicitly meant "for women," at least among the political mainstream.
A Collier's editorial published May 8, 1937, is instructive. Titled "A Woman's Work," it lauds social reformer Florence Kelley for her early minimum-wage advocacy before sketching a brief history of the movement. "The late Samuel Gompers and labor union leaders generally were opposed to the idea so far as it might affect men. Mr. Gompers thought that unions could get more by bargaining than the states would grant through minimum wage laws," the editorial stated. "The American Federation of Labor agreed with him. Unions still oppose minimum wage laws for men. Long ago, however, they conceded the desirability of such legislation for women."
It goes on to explain that support, which was grounded in economic self-interest as much as any reformer's impulse:
The justification for minimum wage laws is found in the appallingly low rates of pay obtained by women in some industries. This year, for instance, when times are generally good, according to New York's industrial commissioner, Elmer F. Andrews, "thousands of women are being paid less than 20 cents an hour and a great many are receiving less than 10 cents an hour" in New York, which boasts the highest age levels in the country!
Commissioner Andrews added these significant words: "In a substantial number of instances women are working long hours at wages as low as two and three cents an hour. Some of this low-paid work is highly skilled. These low wages exert a downward suction on the wages and working conditions of every wage earner in the state.
The editorial goes on to say something that surprises me every time I reread it: "Except as the NRA, which was declared unconstitutional by the Supreme Court, set up a minimum wage for all employed, no effort has so far been made to enact similar laws for men. Labor unions have continued their opposition." But it went on to note that organized labor was changing very rapidly at the time, and that "it is entirely possible that demands may be made for the establishment of legal pay rates for men." What wasn't clear is how the Supreme Court would react. In its 1937 decision deeming a minimum wage constitutional, the justices again emphasizing the differences in the sexes. The state has a special interest in protecting women, it declared:
That phase of the subject received elaborate consideration in Muller v. Oregon, where the constitutional authority of the state to limit the working hours of women was sustained. We emphasized the consideration that 'woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence' and that her physical well being 'becomes an object of public interest and care in order to preserve the strength and vigor of the race.' We emphasized the need of protecting women against oppression despite her possession of contractual rights. We said that 'though limitations upon personal and contractual rights may be removed by legislation, there is that in her disposition and habits of life which will operate against a full assertion of those rights. She will still be where some legislation to protect her seems necessary to secure a real equality of right.' Hence she was '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.'
Limiting women's workdays to 10 hours in Muller, the court had declared it constitutional as a consequence of their inferiority. Striking down the minimum wage 15 years later, it affirmed women's equality. In reversing that decision, so that the minimum wage was extended to women, it also reversed itself once more on the subject of their standing, relative to men, in the world of work. Then, in 1938, Roosevelt signed into law a bill that established a minimum wage of 25 cents per hour for men and women. It was never invalidated by the courts. And quite suddenly, the longstanding connection between the minimum wage and women's inequality was severed.