Bound by Our Constitution: Women, Workers, and the Minimum Wage

By Vivien Hart | Go to book overview
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Police Power

MINIMUM WAGERS faced a dilemma. Women's wages were widely understood, and widely regretted, as a necessary contribution to the family economy: “Many men are receiving low wages and the investigation shows that many men cannot properly support themselves nor support a family on what they receive.” But this male responsibility apparently could not be reached by the law: “In America, where the constitutionality of wage legislation is still undecided, even when it affects only women, legislation for men has been generally declared unconstitutional and has thus far received little public support.” Therefore, “it has been deemed wiser to deal with this problem solely as it relates to women and minors.” 1

There were many political reasons why even laws restricted to women succeeded or failed. But the constraint of the Constitution was the most usual explanation of minimum wagers themselves for the prior decision to make sex the basis of coverage. Sooner or later, almost everyone blamed necessity in the face of constitutional force majeure. Yet they did make a choice, in full knowledge of their departure from the British model. 2 Defensively, Americans admitted the logic of including men, acknowledged the merits of British and Australasian prototypes, or merely regretted their own sense of duress. “In England and Australia, the well-being of men as well as women is held to be vital to the state, Elizabeth Glendower Evans remarked. “Most American states have omitted the regulation of men's employment from the power of the controlling authorities, as very properly regretted by you, J. B. Andrews of the AALL wrote to a British colleague. 3 They could have preferred outright a maternalist policy, family wages, or mothers' pensions to support more women at home, or have rejected compromise and fought for comprehensive coverage. To the extent that the courts were indeed the barrier, they could—as sympathetic Columbia economist Henry Seager advised the NCL—have waited for a change in “the American judicial mind” or sought loopholes in the present judicial reasoning, or experimented with some new legal strategy. 4 But, in line with the strategy, credited to Kelley, of the “half-loaf girl: take what you can get now and try for more later, they chose the more accessible goal of legislation for women. 5

The constitutional definition of the powers and functions of the state, the biases and opportunities embedded in constitutional concepts and precedents, and the minimum wagers' attempts to construct a watertight legal rationale are the subjects of this chapter. The issue was whether and how minimum wage laws could be brought within the constitutional definition of the police power


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Bound by Our Constitution: Women, Workers, and the Minimum Wage


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