Adkins v. Children's Hospital 261 U.S. 525 (1923)

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The Adkins case climaxed the assimilation of laissez-faire economics into constitutional law. At issue was the constitutionality of a congressional minimum wage law for women and children in the District of Columbia. (See district of columbia minimum wage act.) The impact of the case was nationwide, affecting all similar state legislation. In the exercise of its police power over the District, Congress in 1918 established an administrative board with investigatory powers over wages and living standards for underprivileged, unorganized workers. After notice and hearing, the board could order wage increases by fixing minima for women and minors. The board followed a general standard set by the legislature: wages had to be reasonably sufficient to keep workers "in good health" and "protect their morals." A corporation maintaining a hospital in the District and a woman who had lost a job paying $35 a month and two meals daily claimed that the statute violated the Fifth Amendment's due process clause which protected their freedom of contract on terms mutually desirable.

The constitutionality of minimum wage legislation had come before the Court in stettler v. o ' hara (1917) but because Justice louis d. brandeis had disqualified himself, the Court had split evenly, settling nothing. In the same year, however, Professor felix frankfurter won from the Court a decision sustaining the constitutionality of a state maximum hours law in bunting v. oregon (1917). Although the Court sustained that law for men as well as for women and children, it neglected to overrule lochner v. new york (1905). In that case the Court had held that minimum wage laws for bakers violated the freedom of contract protected by due process of law. Nevertheless, Bunting seemed to supersede Lochner and followed Justice oliver wendell holmes ' Lochner dissent. The Court in Bunting presumed the constitutionality of the statute, disavowed examination of the legislature's wisdom in exercising its police power, and asserted that the reasonableness of the legislation need not be proved; the burden of proving unreasonableness fell upon those opposed to the social measure.

Because Bunting superseded Lochner without overruling it, Frankfurter, who again defended the constitutionality of the statute, took no chances in Adkins. He relied on the principles of Bunting, the plenary powers of Congress over the District, and the overwhelmingly favorable state court precedents. In the main, however, he sought to show the reasonableness of the minimum wage law for women and children in order to rebut the freedom of contract doctrine. Ina brandeis brief, he proved the relation between the very low wages that had prevailed before the statute and the high incidences of child neglect, disease, broken homes, prostitution, and death.

A recent appointee, Justice george sutherland, spoke for the Adkins majority. Chief Justice william howard taft, joined by Justice edward sanford, dissented also, separately. The vote was 5–3. Brandeis disqualified himself from participating because his daughter worked for the minimum wage board. Sutherland dismissed Frankfurter's brief with the comment that his facts were "interesting but only mildly persuasive." Such facts, said Sutherland, were "proper enough for the consideration of lawmaking bodies, since their tendency is to establish the desirability or undesirability of the legislation; but they reflect no legitimate light upon the question of its validity, and that is what we are called upon to decide." The Court then found, on the basis of its own consideration of policy, that the statute was unwise and undesirable. Sutherland assumed that prostitution among the poor was unrelated to income. He claimed that the recently acquired right of women to vote had elevated them to the same status as men, stripping them of any legal protection based on sexual differences. That disposed of the 1908 ruling in muller v. oregon. Consequently, women had the same right of freedom of contract as men, no more or less.

That freedom was not an absolute, Sutherland conceded, but this case did not fall into any of the exceptional categories of cases in which the government might reasonably restrict that freedom. Female elevator operators, scrubwomen, and dishwashers had a constitutional right to work for whatever they pleased, even if for less than a minimum prescribed by an administrative board. Employers had an equal right to pay what they pleased. If the board could fix minimum wages, employers might be forced to pay more than the value of the services rendered and might have to operate at a loss or even go out of business. By comparing the selling of labor with the selling of goods, Sutherland, ironically, supported the claim that capitalism regarded labor as a commodity on the open market. On such reasoning the Court found that the statute conflicted with the freedom of contract incorporated within the Fifth Amendment's due process clause. Paradoxically the Court distinguished away Muller and Bunting because they were maximum hours cases irrelevant to a case involving minimum wages, yet it relied heavily on Lochner as controlling, though it too was a maximum hours case. (See maximum hours and minimum wages.)

All this was too much for even that stalwart conservative, Chief Justice Taft, who felt bound by precedent to support the statute. Like Holmes, Taft perceived no difference in principle between a maximum hours law, which was valid, and a minimum wages law, which was not. Holmes went further. In addition to showing that both kinds of legislation interfered with freedom of contract to the same extent, he repudiated the freedom of conduct doctrine as he had in his famous Lochner dissent. He criticized the Court for expanding an unpretentious assertion of the liberty to follow one's calling into a far-reaching, rigid dogma. Like Taft, Holmes thought that Bunting had silently overruled Lochner. Both Taft and Holmes took notice of Frankfurter's evidence to make the point that the statute was not unreasonable. Holmes observed that it "does not compel anybody to pay anything. It simply forbids employment at rates below those fixed as the minimum requirement of health and right living." Holmes also remarked that more than a women's suffrage amendment would be required to make him believe that "there are no differences between men and women, or that legislation cannot take those differences into account." Yet, the most caustic line in the dissenting opinions was Taft's: "it is not the function of this court to hold congressional acts invalid simply because they are passed to carry out economic views which the court believes to be unwise or unsound."

By this decision, the Court voided minimum wage laws throughout the country. Per curiam opinions based on Adkins disposed of state statutes whose supporters futilely sought to distinguish their administrative standards from the one before the Court in Adkins. Samuel Gompers, the leader of American trade unionism, bitterly remarked, "To buy the labor of a woman is not like buying pigs' feet in a butcher shop." A cartoon in the New York World showed Sutherland handing a copy of his opinion to a woman wage earner, saying, "This decision affirms your constitutional right to starve." By preventing minimum wage laws, the Court kept labor unprotected when the Depression struck. Adkins remained the law of the land controlling decisions as late as 1936; the Court did not overrule it until 1937.

(See west coast hotel v. parrish.)

Leonard W. Levy


Berman, Edward 1923 The Supreme Court and the Minimum Wage. Journal of Political Economy 31:852–856.

Powell, Thomas Reed 1924 The Judiciality of Minimum Wage Legislation. Harvard Law Review 37:545–573.