WOE UNTO YOU, LAWYERS!

Thus it can happen – and has often happened – that one ma, one judge, holds
the “meaning” of the Constitution in his hands. This possibility was never more
strikingly illustrated than when, less than a year after the Court called a New York
minimum wage law for women unconstitutional, it called a Washington state
minimum wage law for women constitutional – all because one man, Justice
Roberts, voted on the other side. It seems that the New York statute deprived
employers of their property without due process of law and therefore violated the
Fourteenth Amendment, whereas the almost identical Washington statute was a
proper exercise of the state police power and therefore didn’t violate anything. Of
course, it was not the principles, the basic Law, that changed with Justice Roberts’
mind. It was merely that in one case, one principle was “controlling”; in the other
case, it gave way to a different principle.
And it is worth repeating, and remembering, that the alleged logic of
Constitutional Law is equally amorphous, equally unconvincing, equally silly
whether the decisions the Court is handing down are “good” or “bad,” “progressive”
or “reactionary,” “liberal” or “illiberal.” The principles under which the
Washington minimum wage statute was blessed had no more to do with the problem,
or with the Constitution, than those under which the New York minimum wage
statute was damned. The Wagner Labor Act was called constitutional for no more
solid reasons than those for which the Agricultural Adjustment Act was called
unconstitutional. Freedom of the press in Louisiana was defended by logic no less
far-fetched than that which upheld the freedom to employ child labor. No matter in
which direction the legal wand is waved, the hocus-pocus remains the same.
There is one more principle of Constitutional Law that is worth mentioning,
although it has been rather sadly neglected. It is that any law, state or federal, is
entirely proper and valid unless clearly and unmistakably forbidden by the words of
the Constitution. But then, if this principle were regularly followed, there would not
be much use for any of the other principles. There would not be much Constitutional
Law either.
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