an amendment which would require at least a two-thirds majority of votes (i. e. six out of nine) in order to declare unconstitutional an act of Congress or of a state legislature. By some a three-fourths majority was thought not too rigid a requirement.

Along with these recommendations was frequently expressed the confident belief that the interpretation of the Constitution of the United States can be made to meet the demands of the people whose liberty it is bound to protect. Mrs. Florence Kelley wrote:

I am convinced that the words of the text of the constitution are broad enough to enable the Supreme Court, had the majority so desired, to uphold the federal child-labor laws and the District of Columbia minimum wage law.

Professor Henry R. Seager wrote:

Judging from the present trend of opinion and teaching in the law schools of the country and from the gradual revival of progressive thinking, after the post-war reaction, in every section, there is good ground for hoping that the next appointees to the Supreme Bench will share the enlightened views expressed by Justices Taft and Holmes on such issues rather than those of Justice Sutherland and his associates.

Miss Mary Anderson, director of the Women's Bureau of the United States Department of Labor, aptly suggested:

It is also possible that by bending our energies to the accumulation of more fundamental facts on the wage question and its relation to the individual and to industry we may be able to clarify the situation so that there can be no doubt in the judicial mind that regulation of minimum wages is as important a social need as the regulation of hours of work.

In a stirring address to a large annual meeting of

the Consumers' League shortly after the decision of the Supreme Court, Mr. Felix Frankfurter explained that the majority decision of the judiciary had been reached by highminded" men who are "just as bent on doing justice -as they see it-as Chief Justice Taft and his two associates who dissented," that the question is one of "economics, a question of social policy, and the adjustment of social policy to the vague words of the constitution." Recalling a premise to which Justice Sutherland had acceded, that "the ethical right of every worker to a living wage may be conceded," Mr. Frankfurter urged,

The task before us all is to generate in this country a current of opinion so that men will not see the divorce that Mr. Justice Sutherland now sees between ethical requirement and constitutional propriety. . . . My interest derives from an unshakeable faith that if we care as much about what we believe in as do those who believe the other thing, our ideas will prevail. If we will counter inertia with intelligence we will have a civilization in this country that is worthy of being called a civilization. . . the kind of investigation that has been going on must be fostered. The information gathered must be made living, vivid, and active.1

.

Like a general exhorting his men, Mr. Frankfurter pressed the members of the Consumers' League to

Make the facts gained through the operation of such a law so vivid and burning that there will be generated those subtle but very solid currents of opinion that will make the Supreme Court on a reconsideration of the question realize that these are facts with which the states must have the right to deal.

He suggested that this decision is a

1 Cosmopolitan Club, April 20, 1923. Reproduced in part in the Bulletin of the Consumers' League of New York, April, 1923.

triumph for the Alice Paul theory of constitutional law, which is to no little extent a reflex of the thoughtless, unconsidered assumption that in industry it makes no difference whether you are a man or woman. The only way to kill a theory, as Huxley said . . . is by a fact. But the fact itself is not sufficient. You must plant that germ of truth into the body of opinion so that it can spread and kill the theory.

In closing, Mr. Frankfurter plead with his distinguished audience, "Do not expect too much from legislators. Do not even expect too much from courts. They are only indices of the state of feeling, thought and determination of the body politic."

This exhortation did not spring from despair therefore. Moreover it is clear that this view concerning the latent possibilities of broader interpretation of the constitution is in harmony with the views of other students of law and economics. On another occasion, Mr. Frankfurter himself wrote,

Intense feeling against the policy of the legislation must inevitably have influenced the result in the decisions. In truth this presents the point of greatest stress in our constitutional system, for it requires minds of unusual intellectual disinterestedness, detachment, and imagination to escape from the too easy tendency to find lack of power where one is convinced of lack of wisdom.1

Nor is this only a recent view. Professor Henry R. Seager, twenty years ago, came to a similar conclusion in his analysis of a series of judicial interpretations:

Confused and conflicting as are these decisions, it is believed that a study of them justifies the contention that in the field of labor restrictions the courts will sustain any measure which they think really calculated to promote the public welfare.

1 "Hours of Labor and Realism in Constitutional Law," p. 363, supra, cit.

And again,

the constitutional and the economic aspects of the question are so intimately related that we may be certain that a court which believes a protective law economically desirable will find it legally admissable.1

More recently another authority has stressed the need of properly constituted investigatory bodies to act for the enlightenment of the judiciary:

For the present, at any rate, it is not so much attacks on the courts that may be expected to bring progressive labor legislation as reliable investigation of actual conditions by competent administrative authorities whose work will command the respect, not only of courts, but of legislatures, of employers and employees, of the people at large. It is this gap in the American system of labor law that is sought to be filled by the so-called industrial commission."

SUMMARY AND CONCLUSION

With this realization that there has not been sufficient effort to enlighten the courts when important issues have been submitted to them for judgment, it is perhaps not surprising that a review of interpretations in respect to protective labor laws (with the exception of the recent night work case) should begin and close with decisions adverse to those laws. For even though our analysis of decisions clearly reveals a growing tendency in the direction of protection, just as clearly has that tendency wavered. Until the recent decision which annulled the minimum wage law of the District of Columbia, there has been much less fluctuation of decisions regarding special laws for women than for men—that is, in

1 "The Attitude of American Courts Toward Restrictive Labor Laws," Political Science Quarterly, vol. xix, pp. 589-601, Dec., 1904.

* Commons and Andrews, Principles of Labor Legislation, p. 465 (1920).

the so-called non-hazardous industries. In hazardous industries protection of all workers has increased at a fairly steady pace.

In non-hazardous occupations there are so far two lines of reasoning in regard to protection. On the one hand, the welfare of industrial men as well as of industrial women is considered a necessary concomitant of social progress. The masses of workers in modern economic society represent low earnings and weakness while their employers represent high earnings and strength; thus the bargaining power between employer and employee is unequal and the state rightly interferes for the immediate benefit of the workers and the ultimate benefits of all. "The whole is no greater than the sum of all the parts" and when industry is detrimental to the health and vitality of the working population even to some extent," that detriment regardless of sex or age is destructive of progress. This was the line of reasoning in several cases, crystallized in Bunting v. Oregon by which the Supreme Court of the land affirmed a legal ten-hour day for all persons employed in Oregon mills and factories. Here there was seen to be no need of sex distinction.

On the other hand, however, sex distinction has been considered a necessity. The differentiation of women from men in their physical structure and their function as mothers have been regarded sufficient grounds for affirming special laws regulating their work. The recurring decisions in affirmance of these laws, crystallized by the classic case of Muller v. Oregon which affirmed a ten-hour law for women, have acted as precedents for other similar decisions, practically without exception. The night work case of Radice v. New York is latest upon the list.

The decision of the United States Supreme Court denying a minimum wage to women indicates a possible inclination in the judicial mind to give new weight to the first of