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

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

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

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


What difference does a written constitution make to public policy? How have women workers fared in a nation bound by constitutional principles, compared with those not covered by formal, written guarantees of fair procedure or equitable outcome? To investigate these questions, Vivien Hart traces the evolution of minimum wage policies in the United States and Britain from their common origins in women's politics around 1900 to their divergent outcomes in our day. She argues, contrary to common wisdom, that the advantage has been with the American constitutional system rather than the British.

Basing her analysis on primary research, Hart reconstructs legal strategies and policy decisions that revolved around the recognition of women as workers and the public definition of gender roles. Contrasting seismic shifts and expansion in American minimum wage policy with indifference and eventual abolition in Britain, she challenges preconceptions about the constraints of American constitutionalism versus British flexibility. Though constitutional requirements did block and frustrate women's attempts to gain fair wages, they also, as Hart dem


Mention the subject of this book, the minimum wage, and Americans often respond with anecdote, remembering their first job as a teenager, student, or unskilled worker and accurately recalling their hourly rate of pay years later. Mention the minimum wage in Britain and the common response is a blank look or a question: “Do we have one?”

The concept of a minimum wage—a statutory basic rate of pay, a bottom line for waged work, set not by market forces or individual negotiation but by law— is familiar to Americans, many of whom also know that the present minimum wage dates from the New Deal and the Fair Labor Standards Act of 1938. Less well known is that this legislation was preceded by state minimum wage laws for women workers, pioneered by Massachusetts in 1912 and inspired by a British model.

From 1909 until 1993 Britain did have a minimum wage policy, albeit something of a well-kept secret. the British Trade Boards Act, passed in 1909 to protect the wages of low-paid workers, may have had even less effect in Britain than in America, where its example initiated a dynamic policy history. For most of this century minimum wage policy has been a live issue in American politics. in Britain it affected only a handful of occupations, changed only at the margins of coverage, and finally disappeared, to widespread indifference, in the Trade Union Reform and Employment Rights Act of 1993.

Britain was the model; British and American policies began at the same time and in markedly similar circumstances. Although economists differ on the impact of the policy on jobs and profits, all agree that in both countries the monetary value of the minimum wage has always been low and the numbers who have benefited small. But if quantitative comparisons point to similar results of minimum wage policy in each nation, a historical perspective on how each nation developed its own policy reveals strikingly different trajectories.

Britain's path might be portrayed as an insignificant, but completed, circle. the reach of the law, never intended to benefit more than a few low-paid workers, fluctuated, dwindled, and ended. American legislation has had a more dramatic zigzag track, each new direction characterized by a new principle of coverage and a momentum absent in Britain. the first phase of state laws for women, between 1912 and 1923, was abruptly ended by decision of the Supreme Court, after which any principle of entitlement was in doubt, and neither gendered nor general legislation succeeded. in 1938, the federal Fair Labor Standards Act introduced the quasi-universal, ostensibly gender-neutral, terminology of employees and interstate commerce, a promise of inclusiveness gradually pushed toward fulfillment.

Why did these two nations, from their shared beginning, determine the scope of their policy so differently? Why did Americans conduct a continuing public dialogue about who should benefit, while the British tinkered at the . . .

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