On June 2, 1924, a constitutional amendment to ban child labor passed the Senate and was sent out to the states for ratification. Unfortunately, the states never ratified it, although they still could today.
The fight against child labor had been a major part of both the struggle of organized labor and of middle-class reformers for decades. For unionists, they not only saw child labor as degrading to children, but also as undermining the wages of working class. Get rid of the children, they argued, and you eliminate a major source of competition driving wages down. The wages would rise and children could go to school instead of working. For Progressives like Florence Kelley and Lewis Hine, child labor was a horror of American society, contributing to long-term poverty and social unrest that hurt the entire nation. Kelley’s Consumers’ League, as well as the National Child Labor Committee, lobbied Americans, especially middle-class women, to fight against the scourge of child labor through the early twentieth century, first focusing on the state level and then moving into the realm of national politics.
On the other hand, many working families, especially in the South, relied on child labor. But they had little political power. The real opposition came from corporations, especially the textile industry, which relied heavily on children in their mills and which had moved from the northeast to the South during these years in order to take advantage of states that had not passed child labor laws. It was in southern mills where Hine took many of his most powerful images of child labor. The need for a constitutional amendment became apparent when the conservative Supreme Court overturned federal legislation regulating child labor in 1918 and again in 1922. In 1916, the Keating-Owen Act, which the National Child Labor Committee had lobbied for, overwhelmingly passed Congress and was signed by President Wilson. In 1918, the 1918 Supreme Court overturned it in Hammer v. Dagenhart, deciding that Congress had no authority to regulate products made by children. For anti-child labor activists, the only remaining strategy was a constitutional amendment.
On April 26, 1924, the child labor amendment passed the House of Representatives and on June 2, the Senate. The text was simple:
Section 1. The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age.
Section 2. The power of the several States is unimpaired by this article except that the operation of State laws shall be suspended to the extent necessary to give effect to legislation enacted by the Congress
Given the relatively easy passage of the amendment through Congress, the failure of it to gain traction at the state level was striking. Between 1924 and 1932, a resounding 6 states ratified it and 32 state legislatures had voted it down. It was seen as a dead letter. Employers rallied to oppose it. Comparing child laborers to Civil War soldiers, Manufactures Record noted that 850,000 soldiers under the age of 18 had fought in the war and opined, “If they were old enough to fight for their country, they ought to be old enough to regulate the matter of their own employment.” The same editorial added a new twist to this old freedom of contract canard: redbaiting. Passing the amendment,
would mean the destruction of manhood and womanhood through the destruction of boys and girls in this country. The proposed amendment is fathered by Socialists, Communists and Bolshevists…aimed to nationalize the children of the land and bring about in this country the exact conditions that prevail in Russia. If adopted, the amendment would be the greatest thing ever done in America in behalf of the activities of hell. It will make millions of young people under eighteen years of age idlers in brain and body, and thus make them the devil’s best workshop.
I wonder if the person who wrote this had to smoke a cigarette and then shower after that rant.
This sort of pressure, coordinated by the National Association of Manufacturers, is why so few states jumped on board the amendment. But in 1933, it received a jolt of life, thanks to the Great Depression and the overwhelming victories of the Roosevelt administration and reformers at the state level in 1932. Child labor was still a major problem in many states in 1933. In 1933, 12 more states passed it, 10 of which had previously rejected it. In 1934, the Roosevelt administration decided to get behind it directly as a way to build on the National Recovery Administration’s goals to reduce competition and stabilize the economy. The NRA had prohibited labor for anyone under the age of 16, at a time when only 4 states had a similar law on the books. FDR stated in a letter to the Massachusetts League of Women Voters:
Of course, I am in favor of the child labor amendment. A step in the right direction was achieved by demonstrating the simplicity of its application to industry under the N. R. A. Those connected with industries which had, been the worst violators were the first to see the wisdom of the step. It is my opinion that the matter hardly requires further academic discussion. The right path has been definitely shown.
But momentum was fleeting. 4 more states ratified in 1935 and another 4 in 1937. Kansas was the 28th and last on February 25, 1937. Overcoming intransigent or indifferent state legislatures was just too much, as it often is with constitutional amendments.
The child labor amendment would fail, but eliminating child labor was still a leading goal of the Roosevelt administration. It was incorporated into the Fair Labor Standards Act of 1938, which covered most industries, but not agriculture, where child labor remains an issue until the present. Interestingly, Congress did not set a time frame on the amendment. Thus, it theoretically still could be ratified today. Ten more states would need to ratify it. Perhaps even more interestingly, this issue led to its own Supreme Court decision, with the Court ruling in Coleman v. Miller in 1939 that if Congress doesn’t set an end date for an amendment sent to the states, there is no end date. This actually led to the ratification of the 27th Amendment, which 7 states ratified between 1789 and 1792, Ohio ratified in 1873, and no other states ratified until 1978.
The good quotes in this post are borrowed by Chaim Rosenberg, Child Labor in America: A History.
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