I’m reading a book by Cass Sunstein that starts by talking about “The Myth of Laissez Faire” (chapter 2): there is no such thing because property itself is based on a system of laws and enforcement, so the whole idea that government is an intrusion is nonsensical. I’ve always thought that, so I’m not finding much to argue with so far.

In the process he talks about a couple of Supreme Court rulings. The first is Adkins v Children’s Hospital of DC:

Facts of the case

In 1918, Congress enacted a law which guaranteed a minimum wage to women and children employed in the District of Columbia. This case was decided together with Children’s Hospital v. Lyons.

Question

Did the law interfere with the ability of employers and employees to enter into contracts with each other without assuring due process of law, a freedom guaranteed by the Fifth Amendment?

Conclusion

The Court found that upholding the statute would dangerously extend the police power of the state and, thus, found it unconstitutional. Justice Sutherland recognized that the freedom of individuals to make contracts is not absolute and curtailments of this right may be justified in the face of “exceptional circumstances.” However, in this case, the statute’s implementation procedures were overly vague and did not act to regulate the character or method of wage payments, or the conditions and hours of labor, areas in which regulation to protect the public welfare were legitimate. The Congress simply had enacted a “price-fixing law.”

That was 1923. The second case was 1937, West Coast Hotel Company v Parrish.

Facts of the case

Elsie Parrish, an employee of the West Coast Hotel Company, received sub-minimum wage compensation for her work. Parrish brought a suit to recover the difference between the wages paid to her and the minimum wage fixed by state law.

Question

Did the minimum wage law violate the liberty of contract as construed under the Fifth Amendment as applied by the Fourteenth Amendment?

Conclusion

In a 5-to-4 decision, the Court held that the establishment of minimum wages for women was constitutionally legitimate. The Court noted that the Constitution did not speak of the freedom of contract and that liberty was subject to the restraints of due process. The Court also noted that employers and employees were not equally “free” in negotiating contracts, since employees often were constrained by practical and economic realities. This was found to be especially true in the case of women. This case explicitly overruled the Court’s decision in Adkins v. Children’s Hospital (1923).

Or, as Anatole France put it:

La majestueuse égalité des lois, qui interdit au riche comme au pauvre de coucher sous les ponts, de mendier dans les rues et de voler du pain.

In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.

It takes a lot of social arranging to make it possible for a Donald Trump to lie and cheat his way into the big piles of money.