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

By Vivien Hart | Go to book overview
Save to active project

EIGHT
Labor and Commerce
THE FAIR LABOR STANDARDS ACT, U.S.A., 1937–1938

WHY BOTHER to name an act “fair”? Who would intend anything else? The naming of the Fair Labor Standards Act of 1938, the source of modern minimum wage policy in the United States, was itself a clue that a constitutional preemptive strike as well as a political achievement was planned. Due process called for fair procedures. Adkins had hinted that a fair wage might be constitutional. And federal antitrust legislation had won judicial approval with the argument that the Commerce Clause of the Constitution allowed Congress to establish the rules of fair competition. Administration lawyers seeking a basis for a federal minimum wage had ample reason for placing fairness at the forefront of their case and at the head of their title. The everyday meaning of fairness as justice barely entered either legal or political debate over the act. It was a technical, constitutional sense of fairness that gave the new policy its name. 1

The FLSA found constitutional authority in the federal power to regulate commerce between the several states. The preamble to the act declared that “the existence of labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general wellbeing of workers” variously: 1) used the medium of commerce to spread such conditions more widely; 2) burdened commerce itself and inhibited its free flow; 3) constituted unfair competition; 4) led to labor disputes (with all the above lamentable secondary effects); and 5) interfered with the orderly and fair marketing of goods. This was the rhetoric of the Webbs' paradigm of sweating, seeking fair economic processes, not of the original NCL model minimum wage law: “The welfare of the State of demands that women and minors be protected from conditions of labor which have a pernicious effect on their health and morals.” 2 The shift from police power to due process arguments after Adkins had diverted attention from gender issues. Passage of the FLSA completed the process as “commerce, and “employees” within commerce, became the named targets of minimum wage policy.

The FLSA apparently solved problems of definition and coverage that had dogged the campaign for the past thirty years: the act applied to “labor, not just to women or even only to sweated labor; indeed, gender discrimination was specifically barred; it was national, eliminating the need for forty-eight separate campaigns and the problems caused by the disparities between states; it set a flat-rate wage, escaping the problematic and highly political task of calculating “living” or “fair” wages; and its premise of universality meant that exemptions had to be argued out of coverage, whereas previously each occupation had been argued into coverage by state wages boards.

-151-

Notes for this page

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Notes
Cite this page

Cited page

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited page

Bookmark this page
Bound by Our Constitution: Women, Workers, and the Minimum Wage
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this book

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen
/ 255

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?