What Fresh Hell Is This?

February 14, 2013

Tracking Teh Crazie - The "Unconstitutional" Minimum Wage

Every now and then it's good to take a peek at teh crazie - and we've done it more than a few times here at 2PJ.

Today, I'd like to look at this paragraph found at World Net Daily (actually it's from Mr Crazie himself, Joseph Farah):
My thought is that nobody in Washington – not Obama, not the Congress and not the Supreme Court – has any constitutional authority to insert itself between employers or potential employers and employees. If two consenting adults, as Obama believes, can do whatever they want to each other sexually, surely two consenting adults have the right to agree or not to agree to perform services for whatever wages they deem appropriate – without any interference from the federal government.
This is your more or less classic tenther argument about the minimum wage.  If it's not specifically spelled out on the Constitution, the Congress doesn't have the authority to implement it.

Too bad the Supreme Court already decided (in 1937!) that Congress does have the authority to set a minimum wage.  From West Coast Hotel v. Parrish:
In each case the violation alleged by those attacking minimum wage regulation for women is deprivation of freedom of contract. What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation, the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals, and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process. This essential limitation of liberty in general governs freedom of contract in particular. More than twenty-five years ago we set forth the applicable principle in these words, after referring to the cases where the liberty guaranteed by the Fourteenth Amendment had been broadly described.

'But it was recognized in the cases cited, as in many others, that freedom of contract is a qualified, and not an absolute, right. There is no absolute freedom to do as one wills or to contract as one chooses. The guaranty of liberty does not withdraw from legislative supervision that wide department of activity which consists of the making of contracts, or deny to government the power to provide restrictive safeguards. Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community.

This power under the Constitution to restrict freedom of contract has had many illustrations.  That it may be exercised in the public interest with respect to contracts between employer and employee is undeniable. [Emphases added.]
The United States Supreme Court, 75 years or so ago.

When given the opportunity 4 years later, the US Supreme Court said in US v. Darby:
Since our decision in West Coast Hotel Co. v. Parrish, it is no longer open to question that the fixing of a minimum wage is within the legislative power and that the bare fact of its exercise is not a denial of due process under the Fifth more than under the Fourteenth Amendment.
And yet, Joseph Farah and his merry band of truth-telling tenthers missed this decades old decision.

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