1. Lecture 45 Economic Substantive Due Process
Part 4: The Heyday

2. This lecture We will over the Heyday of Substantive Due Process
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3. Adkins v. Children’s Hospital (1923)
Background
The Congress establishes a Minimum Wage Board for the District of Columbia which had the authority to set a minimum wage for children and women
The Board set the wage for women at 34.5 cents an hour
The Children’s Hospital sued claiming it violated its due process rights
They said it encompasses the liberty to enter into salary contracts with employees
A laid off employee sued because she said she lost her job due to the higher wages
Question
Did the law interfere with the ability of employers and employees to enter into contracts with each other without violating due process of law under the 5th Amendment?

4. Adkins v. Children’s Hospital- II
Arguments
For Adkins (uphold the law)
This law is reasonable
It is aimed at safeguarding women and children and is a legitimate end
The means are legitimate exercises to a legislative end
For Children’s Hospital (strike down the law)
This is only a bill to fix wages
It violates the 5th Amendment by prohibiting her from negotiating for wages
Problems are not solved by excluding men
The law is not temporary or spurred by an emergency

5. Adkins v. Children’s Hospital- III
Sutherland riles for a 5-3 Court
Joined by Butler, McReynolds, Van Devanter, and McKenna
This is exclusively a price fixing law applied to adult women
This forbids them and employers from freely contracting for wages
He notes that the distinction between men and women as no longer as rigid
The liberty to do as one wants is not absolute
But this still goes too far need extraordinary circumstances
If one could set minimum wage laws, what about maximum wage laws?
“For surely the good of society as a whole cannot be better served than by the preservation against arbitrary restraint of the liberties of its constituent members”

6. Adkins v. Children’s Hospital- IV
Chief Justice Taft, dissenting
Joined by Justice Sanford
He thinks the Court went to far
He would be more deferential to Congress
“But 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”
He thinks the controlling precedent should be Bunting, not Lochner
He would therefore overrule Lochner

7. Adkins v. Children’s Hospital- V
Justice Holmes, dissenting
He would also urge deference
He criticizes the Court for adopting adherence to “Liberty of Contract”
He calls it “dogma, Liberty of Contract”
It is not found in the text of either amendment

8. Changes to the Court By 1922 all the Four Horsemen were on the Court
They would all remain there until 1937
They had many tools in their arsenals to strike down federal regulations

9. Next Lecture
We move to the New Deal cases and the decline of substantive Due Process
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