It’s worth mentioning here that, Lee’s claims that Hammer was a regrettable outcome compelled by the Constitution notwithstanding, the majority’s reasoning was in fact remarkably specious. The law struck down in Hammer wasn’t even a general ban; it merely prevented good made with child labor from being shipped across state lines. As Holmes noted in his dissent, the idea that this regulation wasn’t an excerise of the federal government’s power to regulate interstate commerce was absurd, and moreover the Court’s conservatives were very inconsistent about applying this highly dubious constitutional requirement:
The statute confines itself to prohibiting the carriage of certain goods in interstate or foreign commerce. Congress is given power to regulate such commerce in unqualified terms. It would not be argued today that the power to regulate does not include the power to prohibit. Regulation means the prohibition of something, and when interstate commerce is the matter to be regulated, I cannot doubt that the regulation may prohibit any part of such commerce that Congress sees fit to forbid. At all events, it is established by the Lottery Case and others that have followed it that a law is not beyond the regulative power of Congress merely because it prohibits certain transportation out and out….So I repeat that this statute, in its immediate operation, is clearly within the Congress’ constitutional power. [cites omitted]
The question, then, is narrowed to whether the exercise of its otherwise constitutional power by Congress can be pronounced unconstitutional because of its possible reaction upon the conduct of the States in a matter upon which I have admitted that they are free from direct control. I should have thought that that matter had been disposed of so fully as to leave no room for doubt. I should have thought that the most conspicuous decisions of this Court had made it clear that the power to regulate commerce and other constitutional powers could not be cut down or qualified by the fact that it might interfere with the carrying out of the domestic policy of any State.
Hammer was not only a bad outcome, it was a bizarre reading of the Constitution. It’s amazing that a United States Senator would cite it as a model in 2011.