This Day in Labor History: December 19, 1940

On December 19, 1940, arguments before the Supreme Court began in U.S. v. Darby Lumber Co. to decide the constitutionality of the Fair Labor Standards Act, passed in 1938. In this rare era that the Supreme Court was not horrible to anything that would help American workers, the Court upheld the FLSA and the nation was guaranteed the minimum wage, overtime pay, the 8-hour day, and other key parts of American worklife.

The Fair Labor Standards Act was the culmination of decades of labor reform that the Supreme Court had overturned or which had not been able to get passed in other ways. It included the minimum wage, routinely tossed out by the Supreme Court. It banned most child labor, fulfilling a dream of reformers going back decades and which was left unfilled by the failure to ratify the Child Labor Amendment to the Constitution (which we could still ratify today, and should!). It created the eight-hour day as the standard American workday, a dream of the American labor movement going back over a half-century. Then, it created overtime pay if you had to work more than 44 hours a week. A few years later, it would be reduced to 40.

It is hard to overstate how much so many employers loathed the FLSA. One was Fred Darby, who owned Darby Lumber in Statesboro, Georgia. He founded the company in 1919, bought a bunch of pine forested land around the town and employed about 50 people. It was a profitable company, with easily cut timber and limited transportation costs to get it to the market. It even did fine in the Great Depression. By in 1938, it was a well-established company bringing plenty of money into Darby.

Darby simply refused to abide by the new FLSA standards. This guy was a real piece of work, He could have paid more, not employed children, and only worked his employees eight hours, but he just flat out refused. This was his business by God! No damn FDR was going to tell him how long he could work his laborers. It didn’t take long for word of this to get around. He was found out and fined in 1939, part of a larger federal crackdown on southern timber owners. Darby then appealed the case. The timber industry was notoriously awful in the South. These were among the most exploitative employers in the country, often using Black labor with the force of violent control behind it. It was southern low wages that made it so hard for timber workers in areas such as the Pacific Northwest to win any rights at all. After all, employers in the North and West did have a point when they claimed they would be undersold by dirt cheap labor coming out of southern timber. People buying timber didn’t care where it came from. They wanted it as cheap as possible. Without federal intervention in the labor markets, this could continue forever.

This is also a moment to note that many big corporations acquiesced to the New Deal as part of the cost of doing business in the late 1930s. But small employers were the ones who really loathed Roosevelt and everything he stood for. I never understood the liberal fetish for small business. They are almost always the most rapacious and greedy employers out there. They are the ones who really loathe unions almost universally. Even today, they are the ones out there saying that any improvement in workers’ lives means the end of their business, despite research going back to the FLSA demonstrating that rising minimum wage rates make at worst a negligible difference in business failure.

Now, by this time, the conservative reliance on the courts to halt the twentieth century had come under serious attack. Employers had expected the National Labor Relations Act ruled unconstitutional, but in NLRB v. Jones & Laughlin Steel Company in 1937, the Court had shifted and ruled 5-4 to keep the NLRA. That had led most of the far rights judges to retire. So the hopes to throw out the Fair Labor Standards Act were not that great. But they were going to try.

Darby initially had success in his case. An appellate court ruled that the FLSA violated the Tenth Amendment, saying that this was strictly a local matter and had no relation to interstate commerce. This is of course ridiculous; if a manufacturer in one state could undercut the cost of timber or some other product because of lower wage rates and that timber, as happened, was placed into any number of manufactured goods that traveled the nation, then the entire concept of the minimum wage was null and void. There was also a Fifth Amendment argument as well, as Darby claimed the part of the FLSA that required employer record keeping was a violation of his self-incrimination protections. Eyeroll.

The Supreme Court gladly took this case. They did not take long to dispose of it either. Harlan Stone wrote for a unanimous majority in U.S. v. Darby Lumber Co. His opinion completely rejected the nonsensical Tenth Amendment argument. In doing so, it tossed out its previous precedent of Hammer v. Dagenhart, the horrible 1918 case that threw out the Keating-Owen Child Labor Act. In that case, the Court created an absurd distinction between manufacturing and sale. In doing so, it announced the Court would defer to Congress on this issue, assuming those writing the laws knew they wanted to regulate business across state lines. It also rejected the Fifth Amendment as utterly ridiculous.

For the next few decades, judicial restraint in interpreting economic regulations was the norm. Today, a Court that would make Melville Fuller salivate definitely has ended that tradition. As per usual then, today the Court once again is unremittingly hostile to the rights of American workers.

Incidentally, there’s a book coming out soon that does a deep dive into the Darby case. I know this because I wrote a blurb for it. When it comes out, I will update this post with the relevant information.

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