‘Living wage’ law is unconstitutional – if you ask lobbyists

October 6, 2014

Demonstrators rally to raise the hourly minimum wage to $15 for fast-food workers at City Hall in Seattle

Industry trade groups are now challenging Seattle’s new minimum wage law as unconstitutional. They claim the city’s $15 an hour rate violates the 14th Amendment. Passed just after the Civil War to ensure equal rights for the newly freed slaves, that amendment says no state may “deny to any person . . . the equal protection of the laws.”

According to the industry lawsuit, the minimum wage law violates this Equal Protection Clause because it phases in the higher wage at a different schedule for franchised companies than for small local businesses.

But the trade groups’ argument twists the real intent of the 14th Amendment. Its drafters had a special interest in whether workers could earn “fair, living wages,” our research has revealed. That phrase was often used by Senator Jacob Howard, a staunch Republican who served as the 14th Amendment’s Senate floor manager in 1866.

fein -- Jacob_M._Howard_-_best!During congressional hearings, Howard repeatedly asked witnesses whether employers were paying the newly freed slaves “fair, living wages.”

Howard had reason to emphasize this point. Even before the Civil War ended, the Union Army was deeply concerned about whether freedmen were receiving fair wages. An 1865 Army work plan, for example, instructed officers to assist freedmen in obtaining “fair wages for their labor.”

Sometimes it was a struggle to achieve this. When employers in two recalcitrant South Carolina counties persisted in underpaying the freedmen, one Army general contemplated moving those counties’ entire freed population to areas that would pay them “fair wages.” By 1866, a special military unit established to assist freedmen during the post-Civil War Reconstruction had resorted to distributing standard labor contracts, with fixed labor rates, that would promote “prosperous relations between capital and labor” and be “satisfactory to the freedmen.”

Many Americans viewed “fair, living wages” as an integral part of the struggle from slavery to full citizenship. The influential abolitionist editor Horace Greeley — famous for his 1865 editorial that advised “Go West, young man” — wrote a widely reprinted open letter to “the Colored People of North Carolina” on September 14, 1865. He urged them to take immediate steps to demand “fair, living wages” as part of their larger struggle for equal rights.

14th Amendment page1So when members of the special congressional committee asked whether freedmen could earn fair or living wages, they understood the issue as intimately connected with the equality that the 14th Amendment ultimately enshrined.

That wasn’t the only concern behind the 14th Amendment, of course. But, unlike protection of the economic advantages that franchised businesses have over small local businesses, it was part of the 14th Amendment’s overall goals.

Given how important obtaining “fair, living wages” was to the 14th Amendment’s authors, industry lawyers have no basis to argue that the Equal Protection Clause protects the companies, rather than the workers. But it’s not surprising. Ever since the 14th Amendment was passed, corporate lawyers have tried to leverage it to strike down laws like Seattle’s.

In 1938, a frustrated Supreme Court justice complained that of the cases in the court in which the 14th Amendment was applied during the first 50 years after its adoption, “less than one-half of 1 percent invoked it in protection of the negro race, and more than 50 percent asked that its benefits be extended to corporations.”

Just this year, the Equal Protection Clause has been invoked on behalf of coal companies and multinational agribusiness conglomerates.

People applaud during a Seattle City Council meeting before the council's vote on raising the minimum wage to $15 per hour in Seattle, WashingtonWe need to put a stop to this unfounded constitutional argument. The businesses had their opportunity to make their case to the city of Seattle — and they lost. They shouldn’t be allowed to run to court under the banner of the 14th Amendment.

When Abraham Lincoln was just a rookie congressman, he wrote that securing “to each laborer the whole product of his labor, or as nearly as possible, is a most worthy object of any good government.” That’s what Seattle’s law does. Sixteen years after Lincoln wrote that, he vowed at Gettysburg to preserve a “government of the people, by the people, [and] for the people.” That’s what the industry’s lawsuit threatens.

The congressmen of Reconstruction sought to carry forward Lincoln’s legacy with the 14th Amendment. Their vision of full equality is not yet realized. But if they could see what Seattle is trying to achieve, they would be proud.


PHOTO (TOP): Demonstrators stage a rally after a long march from Sea-Tac to raise the hourly minimum wage to $15 for fast-food workers at City Hall in Seattle, Washington, December 5, 2013. REUTERS/David Ryder

PHOTO :INSERT 1): Senator Jacob M. Howard  LIBRARY OF CONGRESS/Mathew Brady

PHOTO (INSERT 2): 14th Amendment.  Courtesy of National Archives

PHOTO (INSERT 3): People applaud during a Seattle City Council meeting before the council’s vote on raising the minimum wage to $15 per hour in Seattle, Washington, June 2, 2014. REUTERS/David Ryder


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By now we all understand the deal. Corporate America has invested literally billions of dollars in campaign finance contributions and therefore expects nothing less than government, society, and an economic system of their chosen design. Which is why they will go so far as to cite the Constitution of the US to avoid paying workers any more. Of course, it you can’t manage a successful and profitable business paying workers a living wage, instead expecting the rest of us to subsidize you through our taxes, you probably shouldn’t be in business. But of course we all know the big guys can afford it and it is to their delight that small businesses will be hurt (see first sentence). The second biggest financial collapse in this country’s history, and the resulting recession that followed (not to mention destruction of unions), have given the Capital side of the equation a permanent advantage. Jobs have either been lost to technology or to outsourcing, and they will not be replaced. Millions of people who have worked hard all their lives now have to live on wages they would never have expected to work for. Re-training takes time and money, so a labor force correction will take a long time. There is no incentive for companies to hire, increase compensation, or offer benefits for the simple reason it is not only lucrative not to, but there are no punitive triggers for doing so. We as a country feel it is their god given right to fleece us and prove the insanity of trickle down economics and then watch as people who will never benefit from it argue in its favor and vote for candidates who will double down on it. I know, it seems crazy. That’s because it is. Especially considering that 75% of our GDP depends on consumption, and what we have effectively done is take discretionary income out of the hands of our consumers with stagnant wages and minimum wage. No one said the people at the top are smart, they are just doing what they can get away with even if it ends up having long term negative consequences. Short term gratification rules!

Posted by LucieLu | Report as abusive

Nowhere does the 14th Amendment guarantee that any job provide enough income to raise a family or guarantee a lifestyle. The word in the phrase “fair and living wages” the author refuses to acknowledge is “fair”. Flipping burgers is entry level, that’s it. A burger flipper is easily trained and easily replaced. Look at a timer, use a spatula. If you want an income large enough to raise a family, don’t make a stupid decision to have a kid you can’t afford first and then expect your employer to pay for it. YOU are responsible for YOUR decisions, not everybody else.

Just another symptom of a welfare society…

Posted by TOTL | Report as abusive

“We need to put a stop to this unfounded constitutional argument. The businesses had their opportunity to make their case to the city of Seattle — and they lost. They shouldn’t be allowed to run to court under the banner of the 14th Amendment.”

We don’t need no stinkin constitutional rights.

You can’t make this stuff up.

Posted by Yaakovweeeeeee | Report as abusive

I think $15 is fair for someone spending their life’s hours working for others. Any less really is being cheated.

We’ll see how well fastfood businesses do though, once they raise their prices even more. I believe those that do not improve their quality will fail within a year or two. We’re already paying close to $10 for a burger, fries and drink.

Posted by Factoidz | Report as abusive

apparently you can make this stuff up…

In case you didn’t actually read the piece, The amendment was made for freed slaves, not the corporations that want to use their labor. If the argument is unfounded, then they are spuriously claiming rights that are not theirs to claim, according to the courts.

From this you divine that this is an attack on constitutional rights…talk about reading what you want to read.

Posted by Benny27 | Report as abusive

Oh and bye-the way, this case will be laughed out of court, it’s not unconstitutional to pay fair wages, that’s why the 14th amendment was passed!

Posted by Factoidz | Report as abusive

The government really should not be in the business of setting wages. Wages should be what the worker is willing to work for and the employer is willing to pay. When the government sets a minimum wage it devalues our money and makes us less competitive on the world stage. Minimum wage laws are about politicians getting themselves re – elected rather than serving an economic purpose. Of course, once you write something into a law there will be lots of people trying abuse the law by various attempts at wild interpretations. Having said that, I am all for everyone making more money.

Posted by zotdoc | Report as abusive

I have a new restaurant. If I have to pay dishwashers and maintenance people that kind of money, let alone raise the salaries of my cooks and servers, I will close, or make my place smaller. I don’t understand any of the arguments for either side that doesn’t take the ramifications into account. You may say that this will be a temporary issue, I don’t think so. It will change the fabric of business. What is a living wage? $15 per hour is over $30.000 per year. On top of that, I see they want unions. While I respect the original need to unions since employers were starving their workers, in today’s world, the unions are a pox on the world. Look at the teacher’s union and look at the low standards for education today. Remember how the Teamsters killed the NYC ports? There must be a better way.

Posted by SmBusinessOwner | Report as abusive

Since corporations are legally considered people, does that not give them all of the protections afforded by all amendments? It seems that with today’s court, the original intent of the laws they decide upon has become irrelevant.

Posted by giddyuppy | Report as abusive

the government has no business fixing wages. Wages should be a compromise between what the employer is willing to pay and what the worker is willing to accept. minimum wage laws are more about re election campaigns than about any usefull economic impact.

Posted by zotdoc | Report as abusive

Don’t they realize how little they’d get paid if there weren’t minimum wage laws? Their $15.00 an hour would become a fraction of that. You know why? It’s unskilled labor and their are plenty of people that would gladly fill their position.

Posted by acctaks | Report as abusive

It’s unbelievable to me that there are people who think that fast food jobs should pay a living wage. Putting an artificial floor on wages will simply drive up wages across the board, and cause a corresponding inflationary response. I imagine many no longer remember the last time our federal government tried to step in and mandate a price for a product (in that case, a price cap). . .fuel shortages, hour long lines, the 70’s gas crunch.

Minimum wage increases of the magnitude being suggested here debases (at least temporarily) the wages of anyone above that scale. It debases the value of each and every American’s private savings, the values of their homes, etc. etc.

Minimum wage hikes are populism, nothing more. The do little (if anything) to help those we are told they’re for, and in fact many studies show they actually result in increased unemployment in those low-skilled sectors.

Posted by Yashmak | Report as abusive

This case is about whether the unequal treatment of franchises and local businesses is constitutional. Those of you who wish to argue about whether $15 is a reasonable minimum wage please take it elsewhere.

Posted by notme3832 | Report as abusive

MmmmKay, let’s guarantee African-Americans a $15/hr. minimum wage, then.

Posted by daddyvortex | Report as abusive

“When Abraham Lincoln was just a rookie congressman, he wrote that securing “to each laborer the whole product of his labor, or as nearly as possible, is a most worthy object of any good government.”” I agree with Lincoln. But now the government itself takes on average half your income.

Posted by kaidan | Report as abusive

Wow. Ron Fein was in such a hurry to write a blog post with a sensational headline that he entirely missed the purpose of the lawsuit. This is pretty embarrassing.

At least he provided a link to the complaint, so we could read what he didn’t. Nothing in it alleges that a living wage is unconstitutional (but… wouldn’t that make a great story! Oh the outrage!!). As said above by notme3832, this case is about the unequal treatment of different types of businesses. Irrational, unequal treatment is exactly what the 14th amendment’s equal protection clause is about.

Posted by Strict_Scrutiny | Report as abusive

First of all, agree with notme3832. This lawsuit has got nothing to do with the fairness of the quantum of the minimum wage.

Second, badly formulated law is no solution to any problem. The lawsuit merely points out that the ordinance under scrutiny is bad in law and therefore must be scrapped. It has raised a relevant point. If this were allowed to go through uncontested, robbing Peter to pay Paul would become the norm which is the road to anarchy.

Third, this article is guilty of papering over the legal points to give the issue a populist feel and draw undeserved support. Not very genteel on the part of someone who is the LEGAL director of an organization. Nowhere does the lawsuit claim that a minimum wage is unconstitutional. What is claims is that the relevant ordinance is bad in law/unconstitutional inasmuch as its treatment of franchisees versus its treatment of non-franchisees goes. A franchisee merely obtains time-limited licensed area-exclusive use of a brand to sell its merchandise in lieu of a fee. It is not the equivalent of the “corporation” on whose behalf it’s franchising. The plaintiffs are the franchisees, not the corporations. This article conceals this vital difference.

Posted by Aritra | Report as abusive

[…] Free Speech for People filed an interesting amicus brief in the case, showing that getting “fair, living wages” for newly-freed slaves was central to debates on the 14th […]

Posted by Hamburglar seeks his 40 acres and a mule | Harry Williams Law | Report as abusive