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Published online by Cambridge University Press: 14 October 2011
The minimum wage was conceived as an attack on poverty within the work force. Americans first defined “sweated labor” as a category and a social problem, then wrote solutions into law which fundamentally changed that definition and undermined the original purpose. First, in 1912, a problem of economic exploitation of workers became a problem of women unable to protect themselves. Transformed into an issue of the rights of labor, in the Fair Labor Standards Act of 1938 (FLSA) a radically new minimum wage law left those most in need unprotected.
1. Congress, Senate, Committee on Education and Labor, Fair Labor Standards Act of 1937. Joint Hearings Before the Committee on Education and Labor, U.S. Senate and the Committee on Labor, House of Representatives, 75th Cong., lst sess., 2 June to 22 June 1937, 273. [FLSA Hearings].
2. Bernstein, Irving, A Caring Society: The New Deal, the Worker, and the Great Depression (Boston, 1985)Google Scholar; Brand, Donald R., Corporatism and the Rule of Law: A Study of the National Recovery Administration (Ithaca, NY, 1988)Google Scholar; Skocpol, Theda, “Political Response to Capitalist Crisis: Neo-Marxist Theories of the State and the Case of the New Deal,” Politics and Society 10:2 (1980), 155–201CrossRefGoogle Scholar; Vittoz, Stanley, New Deal Labor Policy and the American Industrial Economy (Chapel Hill, 1987).Google Scholar
3. Fink, Leon, “Labor, Liberty and the Law: Trade Unionism and the Constitutional Order,” Journal of American History 74 (December 1987) 906CrossRefGoogle Scholar; see also Tomlins, Christopher L., The State and the Unions: Labor Relations, Law and the Organized Labor Movement in America, 1880–1960 (New York, 1985)Google Scholar; Klare, Karl E., “Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937–1941,” Minnesota Law Review 62 (November-March 1977–1978, 265–339Google Scholar; Stone, Katherine Van Wezel, “The Post-War Paradigm in American Labor Law,” Yale Law journal 90 (June 1981), 1509–80.CrossRefGoogle Scholar
4. Bliss, William D. P., ed., The Encyclopedia of Social Reform (New York, 1897), 1298.Google Scholar
5. Hutchinson, Emilie J., Women's Wages: A Study of the Wages of Industrial Women and Measures Suggested to Increase Them (New York, 1919), 80.Google Scholar On sweating, see Webb, Sidney and Webb, Beatrice, Industrial Democracy (New York, 1898), 749–66.Google Scholar The British influence is documented in many contemporary articles and records; see especially Kelley's first meeting with J. J. Mallon of the National Anti-Sweating League: Première Conférence des Ligues Sociales d'Acheteurs, Génève, les 24, 25, et 26 Septembre, 1908 (Fribourg, 1909), 429–55.Google Scholar
6. New York, Fourth Report of the Factory Investigating Commission, 1915 (Albany, 1915), 5:2538–72, esp. 2543, 2562.
7. National Consumers' League (NCL), Annual Report, 1909 (New York, 1909), 21Google Scholar; NCL, Fourteenth Report, 1913 (New York, 1914), 53Google Scholar; Hutchinson, Women's Wages, 80; a concise history is Brandeis, Elizabeth, “Labor Legislation,” in History of Labor Legislation in the United States, 1896–1932, ed. Commons, John R. (New York, 1935), 3:501–39.Google Scholar
8. The Minimum Wage, A Failing Experiment: Together With Some Sidelights on the Massachusetts Experience (Boston, 1916), 20.Google Scholar
9. American Federation of Labor (AFL), Report of Proceedings of the Thirty-Third Annual Convention of the American Federation of Labor. Held at Seattle, Washington, November 10 to 22, Inclusive, 1913 (Washington, D.C., 1913), 63.Google Scholar
10. AFL, Proceedings, 1913, 63; Marot, Helen, “Trade Unions and Minimum Wage Boards,” American Federationist 22 (November 1915), 966.Google Scholar
11. “Address by Mrs. Glendower Evans,” City Club Bulletin (Philadelphia) 6 (27 January 1913), 204.Google Scholar
12. NCL, Executive Committee Minutes, 21 October 1910, NCL Papers, Library of Congress, Organization File; Massachusetts, , Report of the Commission on Minimum Wage Boards, January, 1912 (Boston, 1912), 22Google Scholar; Muller v. Oregon, 208 U.S. 412 (1908).
13. The police power was defined as the inherent power “of promoting the public welfare by restraining and regulating the use of liberty and property.” Freund, Ernst, The Police Pouter: Public Policy and Constitutional Rights (Chicago, 1904Google Scholar; repr., Buffalo, 1981), iii; Freund, The Police Power, 303–4.
14. Adkins v. Children's Hospital of Washington, D.C., 261 U.S. 525 (1923), 553; Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936).
15. Douglas, Paul and Hackman, Joseph, “The Fair Labor Standards Act of 1938,” Political Science Quarterly 53 (December 1938), 491–515, and 54 (March 1939), 29–55CrossRefGoogle Scholar; Forsythe, John S., “Legislative History of the Fair Labor Standards Act,” Law and Contemporary Problems 6 (Summer 1939), 469–90CrossRefGoogle Scholar; Phelps, Orme Wheelock, The Legislative Background of the Fair Labor Standards Act: A Study of the Growth of National Sentiment in Favor of Governmental Regulation of Wages, Hours and Child Labor (Chicago, 1939).Google Scholar
16. Forsythe, “Legislative History,” 474.
17. Patterson, James T., Congressional Conservatism and the New Deal: The Growth of the Conservative Coalition in Congress, 1933–1939 (Lexington, KY, 1967), 196–97.Google Scholar
18. Fair Labor Standards Act, Statutes at Large, 52, sec. 2(a), 1060. [FLSA].
19. NCL Papers, FLSA Correspondence, 1930–1937.
20. See testimony from the Council for Industrial Progress, FLSA Hearings, 126–54, National Association of Manufacturers, 623–89, Southern States Industrial Council and Cotton Textile Institute, 760–830; average hourly earnings tabulated, 338–40.
21. FLSA Hearings, 126–55.
22. Levitan, Sar A. and Belous, Richard S., More Than Subsistence: Minimum Wages for the Working Poor (Baltimore, 1979), 41.Google Scholar
23. See Alpert, Rena G., “Legislative Protection for the Agricultural Laborer,” George Washington Law Review 8 (May 1940), 1060–69Google Scholar; Morris, Austin P., “Agricultural Labor and National Labor Legislation,” California Law Review 54 (December 1966), 1939–89CrossRefGoogle Scholar; section 13(c) of the FLSA exempted child labor on farms when “not legally required to attend school”; see also Jeremy P. Felt, “The Child Labor Provisions of the Fair Labor Standards Act,” Labor History 11 (Fall 1970), 467–81; Fair Employment Practice Committee figures for 1940, quoted by Herbert Hill, Black Labor and the American Legal System: Race, Work, and the Law (Madison, 1985), 183; Department of Commerce, Bureau of the Census, Historical Statistics of the United States; Colonial Times to 1970 (Washington D.C., 1975), 304.
24. Frazier, Edward K. and Perlman, Jacob, “Entrance Rates of Common Laborers, July 1939,” Monthly Labor Review 49 (July-December 1939), 1454–55Google Scholar; “Second Year of the Wage and Hour Act.” Monthly Labor Review 49 (July-December 1939), 1443–44Google Scholar; Frazier and Perlman, “Entrance Rates,” 1456–57; United States v. Darby, 312 U.S.100 (1941).
25. “Leaders Doubtful of Pay-Hour Bill,” New York Times, 16 April 1938; see also New York Times, 9 January 1938, 26 March 1938, 3 April 1938, 14 April 1938.
26. “Second Year,” 1439, 1444; “Wage and Hour Bill,” unsigned and undated note, Thomas G. Corcoran Papers, Library of Congress, Special Files, New Deal Era, FDR White House Speech Material, Wages and Hours.
27. “Second Year,” 1440; bakers were the subject of Lochner v. New York, 198 U.S. 45 (1905), the precedent against labor laws for men; candy makers and garment workers featured largely in early minimum-wage investigations.
28. Jane Mansbridge, Why We Lost the ERA (Chicago, 1986), 3; see also Cott, Nancy F., The Grounding of Modern Feminism (New Haven, 1987)Google Scholar, and Lemons, J. Stanley, The Woman Citizen: Social Feminism in the 1920s (Urbana, 1973).Google Scholar
29. Clara Mortenson Beyer to Vivien Hart, 15 November 1983. Letter in Hart's possession.
30. Perkins, Frances, The Roosevelt I Knew (New York, 1946), 151–52, 249, 255Google Scholar; see also Lash, Joseph P., Dealers and Dreamers: A New Look at the New Deal (New York, 1988)Google Scholar, and Ware, Susan, Partner and I: Molly Dewson, Feminism, and New Deal Politics (New Haven, 1987).Google Scholar
31. Adkins v. Children's Hospital, 554–55, 558.
32. Frances Perkins to Raymond Moley, 16 February 1933, with enclosures, Felix Frankfurter Papers, Library of Congress, Subject File/Labor Dept. Labor standards were not on the agenda; banking, taxation, and relief were; see New York Times, 8 February 1933, 6 March 1933, 7 March 1933; following passage of Lehman's minimum-wage bill, Roosevelt did urge other governors to follow suit; see New York Times, 13 April 1933.
33. The child labor decision was Hammer v. Dagenhart, 247 U.S. 251 (1918); relevant anti-New Deal cases were Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), declaring that government could regulate goods only in the stream of commerce, not the conditions under which they were processed or sold; and Carter v. Carter Coal Co., 298 U.S. 238 (1936): “Mining brings the subject matter of commerce into existence. Commerce disposes of it,” excluding production from commerce.
34. Corwin, Edwin S., “Congress's Power to Prohibit Commerce a Crucial Constitutional Issue,” Cornell Law Quarterly 18 (June 1933), 477.Google Scholar
35. Stern, Robert L., “That Commerce Which Concerns More States Than One,” Harvard Law Review 47 (June 1934), 1335, 1337CrossRefGoogle Scholar; see also Irons, Peter H., The New Deal Lawyers (Princeton, 1982).Google Scholar
36. Frankfurter, Felix, The Commerce Clause Under Marshall, Taney and Waite (Chapel Hill, 1937), 18Google Scholar; “Wages and Hours—What is Practical Now,” memorandum “Sam to Tommy” [Corcoran], 17 June 1936, Corcoran Papers, Special Files, New Deal Era, FLSA 1938.
37. New York Times, 29 January 1937; in addition to the 1936 election result, polls confirmed support for wages and hours legislation: 61 percent in favor in May 1937 was the lowest figure; see Gallup, George H., The Gallup Poll: Public Opinion, 1935–1971 (New York, 1972), 1:60.Google Scholar
38. FLSA Hearings, 2.
39. FLSA Hearings, 3; FLSA, sec. 2, 1060.
40. FLSA Hearings, 6.
41. Felix Frankfurter to Frances Perkins, 9 February 1933, Frankfurter Papers, Subject File/Labor Dept.
42. Hoke v. United States, 227 U.S. 308 (1913).
43. See Gross, Edward, “Plus Ça Change … The Sexual Structure of Occupations Over Time,” Social Problems 16 (Fall 1968), 198–208Google Scholar; Wandersee, Winifred D., Women's Work and Family Values, 1920–1940 (Cambridge, MA, 1981), 84–102CrossRefGoogle Scholar, and a critical comment in Milkman, Ruth, Gender at Work: The Dynamics of Job Segregation by Sex during World War II (Urbana, 1987), 1–11Google Scholar; Cooper, Frank E., “The Coverage of the Fair Labor Standards Act and Other Problems in its Interpretation,” Law and Contemporary Problems 6 (Summer 1939), 335–37.CrossRefGoogle Scholar
44. Quoted by Milkman, Gender at Work, 61; FLSA Hearings, 77; Eileen Boris, “Saving the Factory from the Home: Industrial Homework under the Fair Labor Standards Act,” paper presented at the Convention of the Organization of American Historians, Reno, Nevada, 24 March 1988.
45. FLSA Hearings, 338.
46. West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937); a typical product of Beyer's activism is Bulletin No. 47 of the Department of Labor, Division of Labor Standards, Why a State Wage-Hour Law Now? (Washington, D.C., 1941).
47. Melvin Sims, “Legal Aspects of Labor Problems—Minimum Wages” (mimeo; Washington, D.C., 1936), esp. 37, 106, 133–34. I owe the example of domestic work to Phyllis Palmer; see Domesticity and Dirt: Housework and Domestic Service in the United States, 1920–1945 (Philadephia, forthcoming).
48. “Conversation between Clara Mortenson Beyer and Vivien Hart, Washington, D.C., November 14, 1983,” mimeo, p. 30, Clara Mortenson Beyer Papers, Schlesinger Library, Radclifre College, Cambridge.
49. New York Times, 27 May 1937; Roosevelt, Franklin D., The Complete Presidential Press Conferences (New York, 1972), 11:297.Google Scholar
50. Roosevelt, Press Conferences, 9:230.
51. Paul H. Douglas to Charles O. Gregory, 31 December 1936, NCL Papers, FLSA Correspondence 1930–1937; Wilson, William Julius, The Truly Disadvantaged: The Inner City, the Underclass, and Public Policy (Chicago, 1987), 115, 121.Google Scholar
52. “Proceedings of the Convention of the National Woman's Party, Washington, D.C., 15–18 February 1921,” mimeo, p. 79, in National Woman's Party Papers, 1913–1974 (Sanford, NC, 1979), reel 115.Google Scholar
53. Minimum Wage Study Commission, Report of the Minimum Wage Study Commission (Washington, D.C., 1981), Table 2:1, 1:36.Google Scholar
54. Stern, “That Commerce,” 1346–47, 1365.
55. Wickard v. Filbum, 317 U.S. 111 (1942); Black, Frankfurter, and Jackson were now on the Court; Stern, Robert L., “The Commerce Clause and the National Economy, 1933–1946,” Harvard Law Review 47 (June 1946), 891–92Google Scholar; Congress, Senate, Committee on Labor and Public Welfare, Subcommittee on Labor, Legislative History of the Fair Labor Standards Amendments of 1974, 94th Cong., 2d sess., 1976, 1:501.
56. Phyllis Palmer, “Outside the Law: Agriculture and Domestic Workers under the Fair Labor Standards Act,” paper presented at the Convention of the Organization of American Historians, Reno, Nevada, 24 March 1988, 2.
57. FLSA Heatings, 2.
