On June 3, 1918, the Supreme Court, in the case of Hammer v. Dagenhart, overturned the Keating-Owen Child Labor Act, once again proving a reactionary force in the fight for Americans to live decent lives.
Child labor was a gigantic problem in early twentieth century America. Children as young as seven at times could be put to work. In areas of tremendous poverty, child labor was required for families to feed themselves, but that was a solvable problem, if employers paid a decent wage. Organized labor argued that a livable wage would allow for children to leave the workplace and enter school, raising the labor market for adult workers and allowing children to have a better future. In the early twentieth century, this became a major cause of parts of the Progressive movement. Florence Kelley and the National Consumers League led the way. There had been support for reform from powerful politicians very early, going back at least to Indiana senator Albert Beveridge in 1906.
The Keating-Owen Act was the result of all this. It prohibited the sale in interstate commerce in goods in all industries produced by children under the age of 14, mines under the age of 16, and any factory where children worked after 7 p.m., before 6 a.m., or worked more than 8 hours a day. The Secretary of Labor was tasked with creating an inspection agency to make unannounced visits and had the right to full inspection without employers getting in the way. Woodrow Wilson, who even if you consider the Red Scare, is still the most pro-labor president in this nation before Franklin Roosevelt, was a major supporter of the bill, and was very happy to sign it in 1916.
Southern families often opposed the law and worked with employers to resist it. The paternalism of the southern textile town, an intentional move by employers leaving New England, worked even better than they anticipated in many cases. Richard Dagenhart was a textile mill worker in Charlotte, North Carolina. His two sons also worked in the mill. He sued, with the help of the more wealthy mill owners of course, to challenge Keating-Owen, saying Congress had no right to regulate whether he took his sons out of school and forced them to work. William Hammer was the U.S. district attorney for the western district of North Carolina, who stopped him from breaking the new law.
In the brief time the law was in force, less than a year, investigators discovered that many children under the age of 10 were working, mostly in the South, and a few were as young as 5. Southern mill owners were openly flouting the law, especially the inspection side of it, and there were surely far more small children laboring than the investigators discovered.
On June 3, 1918, the Court decided, 5-4, to favor the father and throw out Keating-Owen. William Day wrote the opinion for the majority, with the typical reactionary support of Edward White, Mahlon Pitney, Willis Van Devanter, and James McReynolds. Day stated that Congress did not have the authority to regulate products made by children and thus Keating-Owen was unconstitutional. He made the claim based upon an arbitrary decision of morality, saying this was totally different than Congress regulating drugs or alcohol or prostitution because those things were inherently immoral, whereas having small children produce goods was a value judgment. Instead, the states were responsible for the labor conditions of goods produced in them. The commerce clause, according to the majority, did not give Congress the right to equalize labor conditions through the nation and went so far to say, “Thus the act in a two-fold sense is repugnant to the Constitution. It not only transcends the authority delegated to Congress over commerce but also exerts a power as to a purely local matter to which the federal authority does not extend.” Repugnant. Unlike child labor.
Oliver Wendell Holmes wrote the dissent, with support from Joseph McKenna, Louis Brandeis, and John Clarke. Holmes succinctly stated that the argument from the majority was completely ridiculous. Goods manufactured in one state and sold in another was, by definition, interstate commerce. Thus, agree or not with the law, it was clearly constitutional. He also took on the ridiculous morality claims of the majority, writing, “The notion that prohibition is any less prohibition when applied to things now thought evil I do not understand… to say that it is permissible as against strong drink but not as against the product of ruined lives” and moreover noted that child labor was in fact immoral, as many countries had already outlawed it. This was one of Holmes’ strongest dissents, in part because he was so obviously right. But as we are seeing today, 5 justices can completely undo good laws based on the fact that it doesn’t serve their corporate masters and they don’t even try to care about logic or consistency to see it through.
Mill owners immediately increased the hours they forced kids to work from 8 to up to 11. Children were put on the night shift and conditions reverted to the total exploitation of the pre-Keating-Owen era. Congress immediately responded by including a revised version of Keating-Owen in the the Revenue Act of 1919, but the Court tossed it out again in Bailey v. Drexel Furniture Company in 1922. Congress then responded by promoting the Child Labor Amendment to the Constitution in 1924, but that was never ratified because a lot of states were pretty cool with child labor. The nation once again decided to address child labor in the Fair Labor Standards Act of 1938, which didn’t eliminate all child labor, but did in most non-agricultural industries. The Court finally overruled Hammer v. Dagenhart in 1941’s United States v. Darby Lumber Company, which is the case that upheld the FLSA.
This is the 314th post in this series. Previous posts are archived here.