Monthly Archives: February 2014

The Supreme Court and the Occupy Wall Street Movement

The Supreme Court and the Occupy Wall Street Movement

Paul Sloderbeck

The tents are gone in the downtown plazas and parks across the country. There are no reports of police clashes in New York City’s Zucotti Park with protesters associated with the “Occupy Wall Street” Movement. Certain parts of that movement remain, though. The comparison between the “99%” and the “1%” has become a part of the national dialogue. Discussions about wealth inequality in America and disproportionate growth may be more common. But for all the Occupy Movement may have accomplished, the tents are gone. In that regard, municipal governments prevailed. The Courts upheld many of their camping and loitering bans as Constitutional as applied against the Occupy protestors and the tents had to go. The First Amendment may give robust protection to daytime protest activities, but in areas like the symbolic speech involving overnight camping, it could not keep the Occupy protestors in their temporary public homes.

The Supreme Court first proposed a test for “symbolic speech” activities in United States v. O’Brien.[1] This case involved the prosecution of a man for burning his draft card under a statute making that practice illegal. When speech involves “speech” and “nonspeech” elements, the governmental interest in regulating the nonspeech elements can justify First Amendment limitations if it is within the Constitutional power of the government, furthers an important or substantial government interest, if the governmental interest is unrelated to the suppression of free expression, and if the incidental restriction on First Amendment freedoms is no greater than is essential to the furtherance of that interest.[2] The Court hesitated to allow a seemingly unlimited variety of conduct to be labelled as speech.

The Court later settled on a two-part test for determining when expressive conduct may be considered speech in Spence v. Washington.[3] The factors to be considered are both the intent on behalf of those engaging in the conduct to communicate a message through their conduct and the likelihood that those observing the conduct will understand the message.[4] In Spence the conduct was the display of an American flag that had been hung upside down and modified with black tape to include a peace symbol. Here the Court introduced a context element into its analysis. Certain acts could become speech based on the times in which they occur. In this case the invasion of Cambodia and the Kent State incident played into Spence’s motivation and perception. The Court held that the Washington law under which Spence had been convicted impermissibly limited his First Amendment rights.

In the context of camping or sleeping overnight as a type of symbolic speech, there are several cases arising out of Washington, DC. In United States v. Abney, a World War II Veteran’s continual sleeping in Lafayette Park to protest his treatment by the Veterans Administration was permitted and the Park Service regulation that prohibited sleeping or camping was invalidated.[5] A pair of cases surrounding the sleeping activities of the Community for Creative Non-Violence reiterated this view. The Court of Appeals for the District of Columbia found that the actions of this group camping and sleeping on the National Mall to protest the plight of the homeless had the sufficient context and political expression elements to constitute speech, and that the Park Service failed to show that its interests would be furthered by a ban on the activity.[6] However, a year later the Supreme Court overturned the decision, finding that the protestors’ rights had not been violated.[7]

As the Occupy Movement went through the Courts across the country, many city governments relied on the Supreme Court’s Clark decision to justify their bans on sleeping overnight in city parks, in spite of how the Occupy protestors’ conduct might be deemed expressive under the First Amendment. In Minneapolis, the Court allowed the ban on sleeping in the plaza as a valid time, place and manner restriction under Clark.[8] The protestors there also had no First Amendment right to municipal electricity for purposes of sound amplification. The Court in Occupy Fort Myers v. City of Fort Myers recognized the conduct of maintaining a presence in the park in order to simulate an occupation as expressive.[9] It found the ordinances against loitering and after-hours park use restrictive as applied against the protestors, but did uphold an ordinance prohibiting the erection tents or other temporary shelters for overnight camping.[10] A similar result occurred in the Occupy movement in Columbia, SC, where the court recognized the occupation as expressive conduct, but upheld a ban on overnight camping and sleeping.[11]

The treatment of the Occupy Movements in the Courts demonstrates the dilemma for overnight sleeping demonstrations. The activity is clearly enlaced with symbolic meaning. The overnight presence of protestors gives an effective symbol for a continuous occupation. The Courts have recognized this symbolic speech, and yet have upheld many of the bans designed to make it much more difficult, by upholding bans on the use of tents, electricity or even fully banning the overnight occupation. In many cases this was done in reliance on the Supreme Court’s Clark decision. For all its success in shaping the public dialogue on wealth equality, the Occupy Movement did less in moving forward the First Amendment right to symbolic speech involving overnight sleep in public areas. Perhaps the next movement similar to this one will help further define and advance the contours of this important area of First Amendment Jurisprudence.

[2] Id. at 377.

[3] Spence v. Washington, 418 U.S. 405 (1974).

[4] Id. at 410-411.

[5] United States v. Abney, 534 F.2d 984 (D.C. Cir. 1976)

[6] Cmty. for Creative Non-Violence v. Watt, 703 F.2d 586 (D.C. Cir. 1983) rev’d. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984)

[7] Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984)

[9] Occupy Fort Myers v. City of Fort Myers, No. 2:11-cv-00608, 2011 WL 5554034 at *5 (M.D. Fla. Nov. 15, 2011)

[10] Id. at *11.

[11] Occupy Columbia v. Nikki Haley, Governor of South Carolina, No. 3:11-CV-03283, 2011 WL 6318587 (D.S.C. Dec. 16, 2011)

Is There a Right to Record Police?

Is There a Right to Record Police?

By: Logan Manthey

Doing a Google search for “police brutality” or “corrupt cops” will pull up thousands of video hits these days. Many people, when asked would say that one has a right to videotape police officers in public. However, after watching a few of these videos, the reactions of the police officers would give one a different impression. Daily, there are stories that detail how police have used one law or another to detain, arrest, and confiscate video of police activity made by citizens.[1] So what exactly can one do if one wishes to videotape police officers performing their duties in public? The answer to that question is a little more complicated than one might think. First of all, the right has not been clearly addressed by mot circuits and the Supreme Court. And when it has been addressed by the few circuit courts that have addressed it, they have come to conflicting decisions. However, what is certain is that there is a general Frist Amendment right to record matters of public interest in a public forum.[2] However, it is not always an absolute right and is subject to restrictions as the Supreme Court held in Ward v. Rock Against Racism.[3] Because it is not absolute, there are restrictions, and so far, there has been no clear delineation of what those rights are.

Typically, in public forums, parks, First Amendment protection is at its strongest.[4] The right of the government to limit speech in these areas is circumscribed, and any government restriction of speech has to be able to pass a high level of scrutiny in order for it to be constitutional.[5] Public areas and parks, especially, are the “apotheosis of public forum.”[6] These places have had a long tradition of being centers of public discussion in America. When there is a rally or protest, they are typically seen in parks or city streets, not someone’s private property. The right to record is essential so that the public knows what is going on. Going back to the Revolution time period, people recording the events and goings on of the British is what sparked the Revolution. The right to record matters of public interest. When citizens exercise their First Amendment right to gather and disseminate news in a way that promotes public discussion and scrutiny of gov’t officials, they advance a “a major purpose of the First Amendment interest.”[7] So the question is, how far does this right extend in protecting the right to record matters of public interest and where?

A recent line of lower court decisions have decided on this issue and both have gone separate ways. The two most recent and seminal cases are the First and Third Circuits, Glik v. Cunniffe and Kelly v. Borough of Carlisle respectively, pertaining to this decision up to this point.[8] The First Circuit in Glik found that there was a right to record matters of public interest, and should one be arrested for filming police officers in a “peaceful manner,” that right is violated because one has a right to record police officers performing their duty in a public place as it is a matter of public interest.[9] However, the Supreme Court case, Ward v. Rock Against Racism, that stated that the right to record is not absolute is subject to reasonable time, place, and manner restrictions.[10] The court stated in certain situations the right may be curtailed, as it is not fully protected, if it is a dangerous situation or other limiting factors, like interference with an on-going investigation, may be present.[11] The court emphasized that officers in certain situations need to have complete control, and videotaping might compromise that control.[12] They cited to the Supreme Court case of Pennsylvania v. Mimms where the Supreme Court declared that during a traffic stop, police officers need complete control

So the two most recent decisions leave us wondering what the limits of this law are. Really, it seems that they could be complimentary to each other. The rule created from this case being that one has a right to record matters of public interest in a public forum so long as the safety of officers or bystanders is not at risk, and the recording does not interfere with an ongoing police investigation or other activity. However, judging by the most recent moot court competition assignment, the rule to be made is still up for debate.[13]

So where does this circuit split leave us today? Currently, one can find stories of people being arrested all over the country for filming police officers daily during protests or traffic stops. Usually, these supposed criminals are violating wiretapping-like laws.[14] The Supreme Court will not be hearing a case pertaining to this anytime soon. It recently denied certiorari to Anita Alvarez v. ACLU of Illinois which left in place the lower court’s holding that the arrest for “eavesdropping” was unconstitutional.[15] However, to speculate a bit, if the Supreme Court were to hear a case today, I believe that the Supreme Court will find that one has a right to record matters of public interest, including police officers, but with some sort of qualifying language or limitations of course.

If the fact that the Supreme Court denied writ for the above mentioned case wasn’t bad enough, police officers enjoy qualified immunity from being sued in court for their violations of these rights unless one can show that there is a right that was violated and at the time of the violation that right was “clearly established.”[16] However, this area of law is so new that a few judges have found that the right to matters of public interest and to record police is not “clearly established.” So even if one were to show that there is a right and it was violated, depending on the judge, the case may fail even before it gets started because the officer would not have been put “on notice” of the state of the law regarding the right to record matters of public interest.[17] But that trend could be breaking, the most recent case, Glik, found that there is a right to record police in public, as it is a matter of public interest, and that an officer is on notice that his actions may violate one’s First Amendment right to record.[18] Also, the Justice Department filed a statement with a federal court in Maryland stating that there is a right to record police in public and that the Fourth and Fourteenth Amendments protect one’s right from unlawful seizure of his or her cellphone should it be demanded of them if they film officers in public.[19] In fact, it may be that Congress can pass new legislation that protects this right because of the power that the Fourteenth Amendment gives it in passing legislation that protects against infringement of rights.[20]

So, be careful out there when recording police. Do it from a distance and do not interfere with their investigation. If they demand that you stop, know that you are in your rights to continue to film, and if they demand your phone without a warrant, also know that you are in your rights to deny them that search and seizure. Who knows? Maybe you’re case will become the test case that law students will read about when they discuss this are of the law.

[1] See e.g., Josh Gerstein, U.S. Weighs In Favor of Right to Record Police, POLITICO,; Radley Balko, Good News and Bad News on Recording the Police, WASHINGTON POST,; Morgan Leigh Manning, Yes, You Have the Right to Record Police, POPULAR MECHANICS,

[2] See Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) .

[3] 491 U.S. 781.

[4] Id.

[5] Perry Educ. Ass’n v. Perry Local Educators’ Ass’n 460 U.S. 37, 45.(1983).

[6] Glik, 655 F.3d at 85(1st Cir. 2011).

[7] Mills v. AL. 384 U.S. 214, 219 (1966).

[8]  See Glik and Kelly v. Borough of Carlisle, 622 F.3d 248 (3rd Cir. 2010).

[9] Glik, 655 F.3d at 86.

[10] Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

[11] Kelly, 622 F.3d at 262.

[12] Id.

[13] Campbell Moot Court Packet, 2014.

[14] See generally Glik v. Cunniffe, 655 F.3d 78.

[15]  Josh Gerstein, Supreme Court Won’t Hear Police Recording Case, Politico,

[16] See Maldonado v. Fontanes, 568 F.3d 263 (1st Cir. 2009).

[17] Id.

[18] See Glik, 655 F.3d at 85.

[19] Gerstein, supra note 1.

[20] Morgan Leigh Manning, supra note 1.

The Obsolescence of the Common Law and the Rise of the Exclusionary Rule in Light of Supreme Court Originalism: A Glimpse at the Evolution of the Fourth Amendment

The Obsolescence of the Common Law and the Rise of the Exclusionary Rule in Light of Supreme Court Originalism: A Glimpse at the Evolution of the Fourth Amendment

By: John J. Gamble

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”[1]

Fourth Amendment interpretation has long been complicated by its relative vagueness[2] and the unique structure of its two clauses, the second of which textually seems to only concern the issuance of proper warrants. In the context of searches, the Court has long conflated the two clauses such that “reasonableness” governs the entirety of the Amendment’s text. The mixing of the two clauses beneath the reasonableness standard has facilitated the Court’s modern jurisprudence by allowing for the creation of the Amendment’s most salient feature, the Exclusionary Rule. This article intends to briefly address the historical validity of the Rule, and alternatives to it, particularly in light of recent Court precedent utilizing what is a seemingly historical analysis of the roots of the Fourth Amendment.[3]

The general account of the Amendment’s origins begins with colonial anger over the use of general warrants by Imperial customs officials in years before the War for Independence.[4] Later, once the federal constitution was promulgated, antifederalists feared that the distant central government proposed by the Constitution would emulate the British Crown and invade the homes of its citizens without a care for their sacrosanct property.[5] Because of this fear the Fourth Amendment was placed in the Bill of Rights to ensure ratification. Because of the Amendment’s aforementioned vagueness, even when compared to other constitutional guaranties, some scholars have charged that the Amendment is incompetently drafted.[6] Others have suggested that in reality the Amendment was meant only to require that warrants be drafted with exacting particularity to avoid the abuses that had occurred before the war.[7] If this latter assertion is correct then the framers must not have been concerned with warrantless searches at all. This lack of concern for warrantless searches may derive from the form law enforcement took in the Eighteenth Century. Early America was largely rural, and there were no modern police bureaucracies; the common law treated low ranking judicial officers with disdain.[8]

Regardless, it does seem clear that the framers were not interested in the ordinary criminal searches and seizures that fill “thousands of pages of our law reports today.”[9] First, the text of the Constitution[10] itself and the ratification debates tell us that a great deal of concern centered on the new government abusing its taxing power.[11] Second, prior to the Fourteenth Amendment and the Doctrine of Incorporation, the Fourth Amendment applied only to the actions of the Federal Government, which in the Early Republic was quite a small operation.[12] The size of the new federal government meant that very few crimes that we associate with the Fourth Amendment today were even illegal under federal law. Obviously narcotic crimes did not exists at all, but even larceny, robbery and murder were almost completely in the sole province of the states, and thus there would have been no need to limit the power of federal officers in regards to those crimes.[13] Third, given the previous two reasons it is also plausible that the framers would not have generally been concerned in protecting petty criminals from what the modern Court would consider an unlawful search.[14] Their chief goal was simply the restraint of federal power.

Now the reader might wonder what happened in the Early Republic or in England if a peace officer conducted a warrantless search that turned up nothing. While there is some scholarly disagreement, it seems likely that the framers meant to leave the difficulty of unreasonable searches in seizure to be solved by the ancient law of trespass.[15] This is where we come to the Court’s role in search and seizure doctrine. In the early Nineteenth Century, trespass actions for unlawful seizures continued to be common. In fact, in this country’s early years the Court ruthlessly allowed federal officers to be forced to pay tort damages for illegal seizures even when following orders from the President.[16] Thus, qualified immunity[17] as we know it today would have been unacceptable to the early Court because the Court felt the “enumeration principle prevents an unconstitutional act from being ‘legalized.’”[18] Unsurprisingly, the tort system of remedies declined in its usefulness as American society grew increasingly urbanized and interconnected. The need for investigative police work, the increase in unsympathetic plaintiffs pursuing common law remedies, the rise of police use of surveillance technology that had no common law remedy, and the dwindling of state political supremacy following the Civil War,[19] all served to render the old common law trespass remedy outdated.[20]  The Court, through some creative reimagining of the interplay between evidence rules and property law,[21] evolved the Exclusionary Rule as a new search and seizure remedy, though, the Court did not entirely abandon a property based mode of analysis for restrictions on searches and seizures until 1967 in Warden v. Hayden.[22]

Today, the Court has created the Exclusionary Rule to fill the shoes of the old common law remedies.[23] This has baffled some scholars who noted that the Rule led to an “explosion of rights” that never previously existed, as the Exclusionary Rule may allow guilty criminals to have evidence suppressed based on “unconstitutional” conduct on the part of the seizing officers. Though the Court originally treated the Exclusionary Rule as an outcome mandated by the Constitution itself,[24] this assertion has been undermined by recent case law, creating several exceptions to the rule.[25] Interestingly, however, though the Court has made no clear move to abandon the Exclusionary Rule in favor of a return to the common law remedies, several pluralities of recent Fourth Amendment decisions seem once again interested in the origins of the Fourth Amendment, particularly in a property based analysis of the scope of rights protected by the Amendment.[26]

Other alternatives exist that could either run alongside the Exclusionary Rule, reduce its importance, or entirely replace it. For instance, the Court could announce that a common law remedy like trespass or replevin is constitutionally required for a search and seizure violation.[27] Of course, such a remedy might prove problematic for administrative reasons. For instance, could the states cap the damages for these constitutional violations or have differing immunity doctrines for their officers? The Court could simply require that the states have some sort of basic remedy that the Court will presume acceptable absent serious evidence to the contrary. Another option would be to limit the scope of unreasonable searches by using common law era property concepts, as Justice Scalia has attempted, though in some circumstances it is not clear that this would deliver a substantially different result from the “reasonable expectation” of privacy standard developed in Katz v. United States.[28]

Regardless of the path the Court might choose, this article is meant only to briefly illuminate the founder’s world of searches and seizures in an attempt to suggest that, while perhaps, the Exclusionary Rule is a useful Fourth Amendment remedy, it is by no means required by the text or demanded by history. Constitutional purists want the Rule axed as an extra-judicial remedy because, as previously noted, the Fourth Amendment was rooted in the property concerns of the founding generation; the Amendment only incidentally protected privacy.[29] Pragmatists may be interested in other modes of fulfilling the Fourth Amendment’s protections because they see the Exclusionary Rule as excessively shielding the guilty. If members of the Court are interested in Fourth Amendment originalism then inquiries should be further made into the historical overlap between the common law and what the Fourth Amendment was meant to protect.[30] A deeper examination suggests that though society has changed considerably since 1791, forays into the searches and seizures of Fourth Amendment past may provide seemingly new ways to tackle an age-old problem.

[1] U.S. Const. amend. IV.

[2] George C. Thomas III, Stumbling Towards History: The Framer’s Search and Seizure World, 43 Tex. Tech L. Rev. 199, 203

[3] See, e.g., United States v. Jones, 132 S.Ct. 945 (2012); Florida v. Jardines, 133 S.Ct. 1409 (2013).

[4] See Thomas Y. Davies, Can You Handle the Truth? . . ., 43 Tex. Tech L. Rev 51, 59 (2010) (noting also that the Founders were enamored with Lord Camden’s words condemning the use of general warrants in England during King George’s attempted suppression of political opponents).

[5] Thomas, supra note 2, at 207-208 (recounting Patrick Henry’s fear of a multitude of excisemen descending upon the citizenry). Modern Americans would likely be surprised how much the protection of property rights factored into early Anglo-American political theory. See id. at 221.

[6] See Davies, 61

[7] Thomas, supra note 2, at 205.

[8] Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 577-578 (1999) (“[the framers] were unconcerned with warrantless intrusions because they did not perceive ordinary officers as possessing any significant discretionary authority at common law to initiate arrests or searches”); see also Thomas, supra note 2, at 200-201 (noting the differences between the modern “paramilitary investigative operation” and the Eighteenth Century constable who could generally only arrests persons for disturbing the peace in their presence or for felonies committed in fact, and constables practically never investigated crime).

[9] Thomas, supra note 2, at 206.

[10] U.S. Const. art. 1. (granting Congress the power to create excise taxes, and also requiring their uniformity throughout the country).

[11] Thomas, supra note 2, at 207-208.

[12] Id. at 208.

[13] Id.

[14] Id.

[15] Id; See also Sina Kian, The Path of the Constitution: The Original System of Remedies, 87 N.Y.U. L. Rev. 132, 145 (2012) (noting the importance in early American jurisprudence of Entick v. Carrington, an English case in which Crown officers were required to pay exorbitant sums in damages for seizing the “sedition papers” of English radical John Wilkes).

[16] See Little v. Barreme, 2 Cranch 170, 178-179 (1804) (Marshall, J.) (holding officer liable for damages when unconstitutionally intercepting a warship though he had orders from the President to that effect.) Unfortunately for the officer the President had misconstrued the statute. See id.

[17] See generally Pearson v. Callahan, 555 U.S. 223 (2009) (discussing modern application of qualified immunity).

[18] Kian, supra note 15, at 147.

[19] Id. at 162-163.

[20] Id. at 150.

[21] Id. at 170-171 (arguing that Weeks v. United States, though often thought of as heralding in the new era of the Exclusionary Rule, was actually a product of the idea that a rule of evidence could not confer a property right); see also Weeks, 232 U.S. 383, 393-396 (1914) (holding that improperly seized evidence is due to be returned to the defendant upon his application for return in “due season.”)

[22] Thomas, supra note 2, at 223; see also Warden, 387 U.S. 294, 305 (1967) (“Searches and seizures may be ‘unreasonable’ within the Fourth Amendment even though the Government asserts a superior property interest at common law. We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property . . .”

[23] See generally Weeks, 232 U.S. 383; Mapp v. Ohio, 367 U.S. 643 (1963) (applying the Exclusionary Rule against the states).

[24] See Mapp, 367 U.S. at 649 (. . . “[t]he Weeks rule is of constitutional origin.”)

[25] See, e.g., United States v. Leon, 468 U.S. 897 (1984) (creating Good Faith exception to warrant requirement); Massachusetts v. Sheppard, 468 U.S. 981 (1984) (allowing introduction of evidence derived from a search using a boilerplate narcotics warrant for a homicide investigation because law enforcement reasonable relied upon the magistrate issuing the warrant); see also Leon, 468 U.S. at 939  (Brennan, J., dissenting) (arguing that the Exclusionary Rule was not just a judicial remedy but one required by “direct constitutional command”).

[26] See, e.g., Jardines, 133 S.Ct. at 1414-1415 (Scalia, J.) (rooting his analysis of using a drug dog to search the curtilage of a house in property principles deriving from Blackstone and the Framers); Wyoming v. Houghton, 526 U.S. 295, 300 (1999) (Scalia, J.) (“We inquire first whether the action was regarded as an unlawful search or seizure under the common law when the Amendment was framed”).

[27] Kian, supra note 15, at 201.

[28] 389 U.S. 347, 360 (Harlan, J., concurring).

[29] Thomas, supra note 2, at 221.

[30] Of course, even what the Amendment should protect is in the eye of the beholder, as Justice Scalia’s focus on property rights suggests.

Legislating Racial Discrimination: The Davis-Bacon Act and Minimum Wage Laws

Legislating Racial Discrimination:  The Davis-Bacon Act and Minimum Wage Laws

William Derek Green


            It is an oft-stated maxim that the road to hell is paved with good intentions.  At the intersection of social and economic policy, this warning has perhaps most often been applied to the minimum wage, particularly by economists—on both sides of the political spectrum.  While the level at which a minimum wage becomes undesirable is a point of considerable debate, there is broad agreement that a minimum wage, when high enough, excludes from the labor market those whose productivity is worth less than the minimum that an employer is required by law to pay.[1]  The resulting unemployment is highest among those with the least opportunity to develop essential skills early in life, meaning that minorities, who may have decreased access to quality education, are likely to be among the most adversely affected.[2]  Today, minimum wage supporters are almost certainly motivated by good intentions despite the potentially negative effects of such a policy, but there exists a disturbing history of bad intentions in the imposition of minimum wage laws in the United States.[3]

            While the use of a minimum wage to exclude blacks from employment in apartheid-era South Africa[4] would not come as a surprise to anyone, most Americans would be shocked to learn that the same thing has happened in the United States in the form of the Davis-Bacon Act.[5]  This law came about as a result of union pressure to establish a minimum wage for federally-funded construction projects so that union workers could not be undercut by those willing to be paid less to perform the same work.[6]  Constituting a large proportion of those willing to be paid less were blacks migrating north to look for jobs and to escape the burdens of the Jim Crow-era south.[7]  Indeed, blacks constituted a disproportionately large percentage of the unskilled construction work force at the time of the bill’s passage in 1931.[8]  Eliminating blacks from employment on federally-funded construction projects was not the unintended consequence of race-neutral bill, it was a primary motive for passage of the Act.  Congressional testimony surrounding the Act is rife with references to maintaining “proper racial representation” and ending the use of “migratory labor.”[9]  More specifically, one representative lamented that a “contractor from Alabama…has cheap colored labor that he transports…and it is labor of a sort that is in competition with white labor throughout the country.”[10]  Another stated that “[y]ou will not think that a southern man is more than human if he smiles over the fact of your reaction to that real problem you are confronted with in any community with a superabundance or large aggregation of negro labor.”[11] 

            The Act was not merely intended to be discriminatory towards black employment.  There is evidence that it actually accomplished that goal with great success.  By ensuring that the local union wage rate was used on the majority of federally-funded construction project, blacks, who were largely excluded from union membership, were effectively shut out of the labor market for these projects.[12]  One study found that Davis-Bacon wage determinations were fifteen to forty percent higher than the prevailing market rate.[13]  Because all workers, skilled and unskilled, were subject to the same minimum wage rates, there was no benefit to hiring unskilled labor.  Blacks were primarily relegated to unskilled jobs and largely excluded from craft unions, so exceedingly few were hired—there was no reason to hire unskilled laborers if skilled laborers could be obtained in their stead and for the same rate.[14]  Accordingly, the period between 1930 and 1950, which was marked by extensive federal works projects, was also subject to a “rapid increase in the black/white unemployment ratio.”[15] 

            It would seem to the observer with even a cursory knowledge of Constitutional jurisprudence that the Davis-Bacon Act is potentially invalid under the test set out in Village of Arlington Heights v. Metropolitan Housing Development Corporation.[16]  In that case, the Supreme Court found that “[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.”[17]  The Court noted further that discriminatory intent need not be the sole motivating factor in passing the challenged legislation for it to be Constitutionally invalid.[18]  Considering that “legislative or administrative history may be highly relevant” to showing discriminatory intent, “especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports,”[19] the Davis-Bacon Act would seem to be highly susceptible to being overturned in federal court.  The single time the Act has been challenged, however, the court granted the government’s motion for summary judgment, finding the Act constitutional.[20]

            None of this is to suggest that the Davis-Bacon Act should be repealed today.  Even though a piece of legislation was passed with discriminatory intent, it may still be non-discriminatory in practice, especially in light of 80 years of subsequent legislation.  Indeed, there is conflicting evidence as to whether the effects of the Davis-Bacon Act were ever discriminatory to begin with, much less today.[21]  But at the very least, economic theory tells us that minimum wage laws can be used to discriminate against disfavored groups, and the passage of the Act shows that even in America, legislators have actually imposed minimum wages for the purpose of discriminating against those groups.  Given the overwhelming popularity of minimum wage laws today, the history of the Davis-Bacon Act serves as a useful reminder that even something so seemingly harmless, so apparently well-intentioned as a minimum wage can be manipulated into something discriminatory and undesirable.

[1] See, e.g., Dan Fuller & Doris Geide-stevenson, Consensus Among Economists:  Revisted, 34 J. of Econ. Educ. 369 (2003).

[2] See, e.g., Walter Williams, Race & Economics, 39 (2011).

[3] See, e.g., Walter Williams, Minimum wage increases discrimination against poor people, Washington Examiner (March 5, 2013 at 5:30 PM); For a more in-depth overview of the use of the minimum wage and other economic policies as a tool for government-enforced discrimination, see Williams, supra note 2.

[4] See, Williams, supra note 2, at 46-48.

[5] Davis-Bacon Act, ch. 411, 46 Stat. 1494 (1914) (current version at 40 USC §§ 3141-3144, 3146, 3147 (2012)).

[6] Williams, supra note 2, at 33, 34.

[7] David E. Bernstein, The Davis-Bacon Act:  Let’s Bring Jim Crow to an End, 2 (January 18, 1993)

[8] Id.

[9] Williams, supra note 2, at 34, 35.

[10] Id. at 34.

[11] Bernstein, supra note 5, at 2.

[12] Id. at 3.

[13] Williams, supra note 2, at 35.

[14] Id. at 36.

[15] Id.

[16] Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977).

[17] Id. at 265.

[18] Id. at 265, 266.

[19] Id. at 268.

[20] Brazier Construction Co., Inc., v. Reich, Institute for Justice (Feb. 9, 2013, 8:00 PM),

[21] See, e.g., Peter Philips, Thoughtless Think Tanks:  Factoid Scholarship and Sound Bite Thinking About the History and Intent of Prevailing Wage Laws, Econ. Dept. Univ. of Utah (Feb. 2001) (arguing that scholarship criticizing the Davis-Bacon Act overemphasizes its discriminatory intent and effects); Dale Belman & Peter Phillips, Prevailing Wage Laws, Unions and Minority Employment in Construction:  A Historical and Empirical Analysis, in The Economics of Prevailing Wage Laws 101-122 (H. Azari-Rad & P. Philips eds., 2005) (arguing from an econometric standpoint that the effects of the Davis-Bacon Act have not been discriminatory towards blacks).

The Real Minimum Wage Problem

The Real Minimum Wage Problem

Jordan Rogers

In his State of the Union address on Tuesday, President Obama called on Congress to raise the minimum wage to $10.10 from its current rate of $7.25.[1] However, the President’s speech failed to call for legislation which would also adjust the minimum wage to account for the effects of inflation.[2] This measure, arguably, would make more of a difference in the living standards of those who work for minimum wage.

To demonstrate the effect of inflation on the minimum wage, one need only consider the answer to the following question: What is the highest that the U.S. minimum wage has ever been? If your answer is the current statutory minimum wage of $7.25 you would be both right and wrong. In nominal[3] terms, the current statutory rate is the highest it has ever been.[4] In fact, since the first minimum wage of $0.25 was set in 1938 it has been raised on twenty-two occasions[5], resulting in a twenty-nine fold increase.[6] If the analysis were to stop here, it might seem that the minimum wage had steadily and significantly increased.

However, the analysis cannot stop here, but must take account of the effect of changing prices of consumer goods and services during the life of the minimum wage. The reason this matters is that if the prices of the goods and services that consumers buy increase faster than their wages, their buying power is diminished. By contrast, if wages increase faster than the costs of goods and services the buying power their buying power is increased.

When the minimum wage is adjusted from nominal to real terms, the narrative is considerably different that it appears on its face.[7] Adjusted for inflation, the federal minimum wage started at $4.08 in 1938 and peaked in the 1968 at $10.77.[8] Viewed in real terms, the minimum wage has, from its inception to its current level, actually failed to even double (compared to a twenty-nine fold increase when considered in nominal terms). Further, whether the current proposal to set the minimum wage at $10.10 would really be a raise, as President Obama implied in his State of the Union address, for minimum wage workers is dubious at best. President Obama said that Congress should “[g]ive America a raise.”[9] However, how many workers would really consider it to be a raise if their wages had fallen over three dollars from their peak and were now going to be raised to a level still below their peak? This is exactly the situation that minimum wage workers find themselves in when you consider wages in real terms. The counter argument is that the comparison should be between the real minimum wage in recent years and the proposed minimum wage. It is true that if this is the measure, then $10.10 per hour would be a raise in both nominal and real terms.

However, unless this amount is indexed to inflation minimum wage workers are likely to see the real value of their wage decline as the economy begins to recover and inflation becomes more of a concern. Whether the minimum wage is raised to $10.10 or not, policy makers need to consider tying minimum wage to inflation so that future minimum wage workers are at least as well off in real terms as current minimum wage workers.

[1] Transcript: Obama’s State of the Union Address as Prepared for Delivery, NPR (Jan. 28, 2014 9:33 PM),

[2]Current federal law does not automatically adjust the minimum wage to account for inflation.  Although the President failed to call for a mechanism which would tie the minimum wage to inflation, he has at other times called for this change. See The President’s Plan to Reward Work by Raising the Minimum Wage, The White House, (last visited Feb. 1, 2014).

[3] Definition of nominal: “An unadjusted rate, value or change in value. This type of measure often reflects the current situation, such as the current price of a car, and doesn’t make adjustments to reflect factors such as seasonality or inflation, which provide a more accurate measure in real terms.” Nominal, Investopedia, (last visited Feb. 1, 2014).

[4] Craig K. Elwell, Inflation and the Real Minimum Wage: A Fact Sheet, Congressional Research Service (Jan. 8, 2014)

[5] Id.

[6] In nominal terms.

[7] The analysis that follows is based on data comparing the minimum wage in real and nominal terms in each year that it has been adjusted. Though, the frequency with which the minimum wage has been changed provides a relatively complete picture, there may be some discrepancies when compared to analyses that account for the effect of inflation in every year over the course of the minimum wage’s life.

[8]  Craig K. Elwell, Inflation and the Real Minimum Wage: A Fact Sheet, Congressional Research Service (Jan. 8, 2014)

[9]Transcript: Obama’s State of the Union Address as Prepared for Delivery, NPR (Jan. 28, 2014 9:33 PM),

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