Minimum wage laws appear in the excerpts as a recurring example of government interference with economic freedom. Bob Zadek and his guests return to them across several episodes, treating them less as a question of how much workers should earn than as a question of whether the legislature may criminalize a voluntary transaction between two consenting adults.
The contractual objection
In the 2014 episode with Damon Root, Zadek frames the minimum wage as a constitutional question rather than a policy one. He describes minimum wage laws as laws that criminalize two consenting adults who want to enter into a contract for the sale of labor, giving the example of a worker who offers to sell his labor for $6 an hour and an employer who accepts. Zadek calls this a transaction between two consenting adults enjoying economic freedom, and asks whether it is not a wonderful example of the tension between economic freedom and the extent to which the legislature can deny that freedom Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
Root agrees, describing the classical understanding of economic freedom as one in which government may regulate the economy but must justify its regulation as a public health, safety, or welfare measure. He allows that workplace health or safety conditions may leave some role for government, but says that when the question is bartering over wages, it becomes special interest legislation rather than a public health or safety question, and the liberty of contract doctrine argues that government is exceeding its power Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
Zadek restates the point: two people peacefully cooperating in a mutually beneficial transaction become criminals because of the application of minimum wage laws, which he calls a perfect example of the subordination of economic rights. He adds that for a good deal of American history economic freedom was taken for granted, and that it was only with the advent of the progressive movement that economic rights were subordinated Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
Lochner and the Bakeshop Act
The same episode supplies the historical anchor. Root recounts that Lochner v. New York was a 1905 Supreme Court decision arising from a New York law called the Bakeshop Act, passed in 1895, which regulated the baking industry in various ways, including a 10-hour maximum day and 60-hour maximum week. The Court held that the maximum hour provision had nothing to do with health or safety, unlike other provisions of the act such as ceiling height and drain pipes, which it accepted. The Court struck the maximum hour provision down as a violation of the right to liberty of contract: the employer had a right to say how many hours he needed people to work, and the employee had a right to contract for those hours Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
Root notes that progressives at the time and since pointed to Lochner as conservative or libertarian judicial activism, saying the Court read a laissez-faire economic theory into the Constitution and overturned the will of the people of New York. He says Lochner set the terms of the legal debate for the next 30 years, and that in 1937 the Supreme Court overturned it as part of the New Deal constitutional revolution, after which the doctrine has been dead ever since Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
The historical and racial argument
A separate line of argument concerns the origins and effects of minimum wage laws. In the 2013 episode on immigration, Zadek says the roots of protectionist economic arguments are visible in minimum wage laws, which he says were initially enacted by whites in the construction trades in New England and in New York because blacks were coming up from the South in the ’20s and willing to work for much cheaper than the prevailing wage of union workers in the Northeast. On his account, the laws were enacted to prevent blacks from working for less Let Them All In (2013).
In the 2020 episode with Michael Tanner, Zadek asks whether minimum wage laws are inherently racist in their effect, though not in the words of the statute, and whether they are a perfect example of governmental systemic racism. Tanner answers that minimum wage laws were historically in many cases intended to block African American participation in many labor fields, and that the people who sponsored the legislation were in many cases explicit about worrying that African American laborers would undercut white wages, much as people now worry about immigrants undercutting wages. He groups minimum wage laws with occupational licensing laws and union shops that African Americans could not belong to, saying they priced many African Americans out of the labor market Towards a Libertarian Theory of Anti-Racism (2020).
Tanner adds that today’s advocates of the minimum wage are not racist and that nobody says he is trying to keep African Americans out of the labor force, but that the laws still have that impact, particularly for young African American men and particularly those without much attachment to the labor force or a large skill set, because the laws block entry-level work Towards a Libertarian Theory of Anti-Racism (2020).
Zadek then describes a Senate Labor Committee hearing, which he believes took place in 1948, at which JFK, then a senator, and Jacob Javits discussed a federal minimum wage increase. According to Zadek, JFK insisted on the increase because his constituents, the Irish in Massachusetts and Boston specifically, were complaining that blacks were taking their jobs, and said he needed an increase in the minimum wage laws to protect the white people’s job. Zadek calls this a perfect example of a systemically racist statute on the books today Towards a Libertarian Theory of Anti-Racism (2020).
Poverty, entry-level work, and licensing
Minimum wage laws also appear in the 2019 episode with Michael Tanner as one of several government policies that make people poor. Tanner lists them alongside occupational licensure and zoning as policies that block poor people from participating in the economy and prevent poor people from getting a start in the American economy Libertarian Anti-Poverty Policy (2019).
In the 2020 episode with Jeffrey Tucker, the discussion turns to eugenics and marriage licensing. Tucker says there was a widespread belief into the 1910s and 1920s that if government could stop people from getting married or stop them from working, which he identifies as one of the reasons for minimum wage laws, then it could stop them from procreating Big government can’t save us from coronavirus (2020).
In the 2020 episode with Robert C. Wright, Zadek argues that where bargaining power is relatively equal, as with a hair salon, a local gym, or a small business, there is no power imbalance and no need for government protection. He says that with small business you do not need minimum wage laws and do not need much about employment law, because you can quit and go elsewhere and jobs are plentiful, and that nobody has an economic monopoly The Decline of American Independence (2020).
The California FAST Act
The 2022 episode with Richard Epstein opens on the California FAST Act, which Zadek describes as newly enacted California legislation signed by the governor, an acronym for the Fast Food Accountability and Standards Recovery Act. Zadek says the act seeks to socialize the entire California fast food industry by putting it under strict governmental control, that other states are looking at what California has done so they can follow the lead, and that he and Epstein will discuss the implications of both the act and minimum wage laws on economic life in America Which Side Are You On? (2022).
Across episodes: the same argument, extended
The excerpts show a consistent argument rather than a developing one. The 2013 episode treats minimum wage laws as an early example of protectionism, enacted by white construction workers against black migrants. The 2014 episode supplies the constitutional frame, with Zadek and Damon Root arguing that such laws criminalize voluntary contracts and locating the doctrine in Lochner v. New York and its 1937 reversal. The 2019 and 2020 episodes extend the claim to poverty and to eugenics, with Michael Tanner and Jeffrey Tucker respectively. The 2020 episode with Robert C. Wright adds the small-business and bargaining-power argument, and the 2022 episode with Richard Epstein carries the topic into the California FAST Act. What changes across the excerpts is the setting — from immigration and labor history, to constitutional doctrine, to poverty policy, to eugenics, to small business, to a specific state statute — while the underlying claim that minimum wage laws improperly block voluntary exchange and harm the workers they are meant to help remains the same.
What the sources do not cover
The excerpts do not state the current federal minimum wage, any state minimum wage figure, or the text of any minimum wage statute. They do not give the outcome of any case other than Lochner, and they do not identify the constitutional amendment or provision on which the liberty of contract doctrine rested. The Senate Labor Committee hearing Zadek describes is reported from memory, including his uncertainty about the year, and the excerpts do not supply the bill number or the record itself. The FAST Act excerpts stop before Epstein explains what the act does.