Shortly After the Turn of the Century, the Focus of the Work Force Turned to Mills and Factories
Biglow 1
Woven by Infant Hands: Child Labor and Constitutional Conflict in early 20th-century America
Sarah Biglow
Shortly after the turn of the century, the focus of the work force turned to mills and factories. In towns where schools were not provided, young children often went to work with their parents. As recounted in one cotton mill, “one little girl whose mother said she was seven years old was industriously taking the waste off the roller covers of the spinning frames…Another girl apparently nine years old was helping her mother at the spooling machine.”1 In the anthracite mines of Pennsylvania it was determined that the coal mines
employed more children than any other industry of the time. In 1902, Mr. Lovejoy, a member of
the National Child Labor Committee, visited several of the mines in the state to evaluate the risks
to the children who worked there. He was appalled by what he saw. His visits revealed that
there were not only thousands of fourteen and fifteen-year-olds working legally in mines but
thousands of children between the ages of ten and eleven working illegally as well. The younger
children worked as mule drivers, couplers, runners, spragers and gate tenders. The majority of
the children worked the breakers, a far more perilous position for a young child. Indeed, the
working conditions the coal mines were far more harmful to children than the other
manufacturing industries. Accidents leaving child workers disabled were frequent in the mines,
endangering the lives of children three times as often as adults. Those who survived the harsh
reality of the coal mines were robbed of sunlight, health and sound bodies. One boy he met had
spent three years in the break picking coal. One of his legs had been so badly crushed in an
accident that he had spent a year in the hospital.
1 Hugh Hindman, Child Labor: An American History (Armonk: M.E. Sharpe, 2002), 158. Biglow 2
Some five years later, Mr. Lovejoy learned the tragic story of Patrick Kearney. Patrick
was one of many children who lost their lives working in the mines. The boy was nine and a half
when he died, even though the foreman who had employed him claimed he had a certificate
stating the boy was fourteen. Upon further inquiry, Patrick’s father admitted that he had lied
about his son’s age to get his boy some work. Mr. Kearney is one example of the lengths parents
would go to get their child into the labor force at barely ten or eleven years old. Parents expected
their sons and daughters to go to work and bring home earnings to help support the family.2
Throughout the course of the history of the United States, certain tensions and struggles have marked the development of the federal and state system of government. Terms such as
‘federalism,’ ‘states’ rights,’ and ‘horizontal separation of powers’ have been used to describe the aforementioned interaction. Beginning in the late 1780s, debates between Alexander
Hamilton’s Federalists and Robert Yates’ Anti-Federalists raged over the powers granted to the federal government in the Constitution. Even before the Constitution was ratified by the states, the tension between those supporting a strong federal government and those supporting the smaller government influenced by strong state governments was a topic of heated discussion.
The Federalist and Anti-Federalists disagreed on numerous issues within the first three articles of the document, including the powers of the Supreme Court and the President. Surprisingly, the powers granted to Congress were of less contention. It wasn’t until the Bill of Rights was drafted and sent to the states for ratification that the two sides came to any sort of agreement.
Regardless of the fact that Hamilton and Yates did not disagree to the same extent on the enumerated powers of Congress as the other branches of the government, the topic does illustrate the animosity that arose between the Supreme Court and Congress. In regards to the powers
2 Walter L. Trattner, Crusade for the Children: A History of the National Child Labor Committee and Child Labor Reform in America (Chicago: Quadrangle Books, 1970), 71-74. Biglow 3 granted to Congress, the Constitution states “[t]he Congress shall have power to lay and collect taxes, duties, imposts and excises…to regulate commerce with foreign nations, and among the several States, and with the Indian tribes…”3 The Commerce Clause discussed in the section became the basis of much of the disagreement between the Supreme Court Justices and members of Congress. In early twentieth century America, Congress asserted its constitutional authority via the Commerce Clause to regulate child labor through the passage of several child-labor related laws and amendments between 1900 and 1937. These efforts, countered first by the
Supreme Court and later by the states in the attempt to ratify the amendment, demonstrate the struggle between the concepts of federalism and the protection of states’ rights as well as the symbolic “tug-of-war” illustrated through horizontal separation of powers during a period of economic and industrial flux.
This state of flux opened up a social ‘can of worms’ in the form of concern over child labor. It was not until the twentieth century that child labor was looked at as a social problem.
During the previous century, children worked in the fields alongside their parents on the family farm. Children were expected to take on adult responsibilities at very young ages. As individuals began moving into urban areas where the work force transitioned to factories and mills, children following their parents into that place of employment was not considered unreasonable or inappropriate.
However, while children were gaining real world adult work experience, they were suffering the consequences of not gaining a proper education. Those children who worked in factories and mills during the first third of the twentieth century were deprived of that educational opportunity. In fact, as Hugh Hindman has noted “[s]everal industries became dependent on child labor. Eventually, there developed a growing sense that there was something
3 U.S. Constitution, art. 1, sec. 8. Biglow 4
not quite right about this industrial child labor, and a reform movement emerged.”4 It is
important, before considering the issue of child labor, to understand the context in which the
term is being used. As Judge Edward Waite wrote in 1925, child labor “…is such labor of
children as deprives them of a fair start in life, in terms of health, play and education, and of
suitable work under home or school auspices or supervision…the gainful employment of
children at unfit ages, unreasonable hours, or under unwholesome conditions.”5
It was in the 1910s that interest groups such as the National Child Labor Committee
(NCLC) sought to protect the country’s youth from the hardship and danger of industrial work.
The NCLC became one of the more prominent parties in favor of regulating the profits and
production of goods in the struggle over child labor during the first third of the century. Mr.
David Clark, publisher of a textile bulletin in Charlotte, North Carolina proved to be the leading
force on the opposing side of the argument. Industrialization and urbanization forced the
legislative branch of the federal government to consider the issue of child labor. Congressional
scrutiny of child labor after 1900 intensified its centuries old tension with the US Supreme Court
and raised the contentious issue of states’ rights within federalism, leading textile manufacturers
.to use the states’ rights argument as a guise for their economic agendas.
Both historians and legal scholars have considered the child labor problem of the early
twentieth century. Hugh Hindman, author of Child Labor: An American History (Armonk: M.E.
Sharpe, 2002) provides an excellent chronology of the child labor issue. Raymond G. Fuller’s
Child Labor and the Constitution (New York: Thomas Y. Crowell Company, 1923) helps to
situate the issue in the context of the legal questions presented to the US Supreme Court. Finally
Katherine DuPre Lumpkin and Dorothy Wolff Douglas’ book Child Workers in America (New
4 Hindman, 5. 5 Edward F. Waite, “The Child Labor Amendment,” Minnesota Law Review Journal of the State Bar Association 9 (February 1925): 180-181. Biglow 5
York: International Publishers, 1937) provides the history of the movement from the side of those who did not believe regulations served to stop the exploitation of children. They agree that the issue is a two-pronged interpretive problem. They assert that “[a]nalyzing such legislation between the 1890s and the 1930s leads to two conflicting stories.”6 These two stories further
highlight the state and federal dichotomy of the US government system. The first story focuses
on the success of Progressive Era reformers to pass legislations protecting child workers on the state level. Overall, these attempts were met with little resistance, even from the state courts who were hesitant to affirm labor protection laws. The other side of the coin falls to the federal attempts to regulate child labor. It specifically mentions Congress and the larger scale reformers such as the US Children’s Bureau as the catalysts for the federal action. One must note two very distinct differences between these two stories, “…the time difference between them (the successes were early and the failures were later) and the fact that the successes were on the state level and the failures were on the federal level.”7
Additionally, the struggle between Congress and the Courts is a topic discussed often by
historians. As one author stated, “[c]ongressional-judicial relations are neither static nor
unidimensional. History, circumstance…and the articulation of issues by Congress and the
Court drive the delicate balance among lawmaking functions.”8 Neither branch can operate
without affecting or being affected by the other. Thus is the fundamental premise behind states’
rights and the notion of federalism. The states need the federal government just as much as the
federal relies on the states to see federal laws and statutes enacted through the Fourteenth
Amendment.
6 Julie Novkov, “Historicizing the Figure of the Child in Legal Discourse: The Battle over the Regulation of Child Labor,” The American Journal of Legal History 44 (October 2000), 369. 7 Novkov, 369. 8 Colton C. Campbell and John F. Stack Jr., Congress Confronts the Courts (Lanham: Rowman and Littlefield Publishers, 2001), 1. Biglow 6
Civil Rights Cases of 1883 – A Brief Case of Precedent
The notion of states’ rights has existed in the minds of American leaders since the
Revolution and the birth of the Constitution. Even after the addition of the Bill of Rights,
contention arose between those who advocated for large government and those who believed that
states should retain the majority of the power. The debate over federalism and states’ rights
came to a head with the enactment of the Civil Rights Act of 1875. The legislature enacted this law in the wake of the Civil War, when African Americans were adopted into those protected under the Fourteenth Amendment. Within this piece of legislation, Congress dictated that
…all persons within the jurisdiction of the United States shall be entitled to the full and equal and enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.9
Congress deemed such a law necessary as a way to enforce the Reconstruction ideals throughout
the country. The legislature believed business persons would not grant persons of color the same
level of respect unless a federal law went into effect that would assure compliance.10 The law
stayed on the books for eight years before the Supreme Court became involved. Between 1875
and 1883, five cases arose that became known as the Civil Rights Cases. By 1883, they reached
the United States Supreme Court, challenging the constitutionality of the Act of 1875.
The issue at the heart of the Civil Rights Cases was whether Congress was within its right to pass a law as it related to the fourteenth amendment. The fourteenth amendment affords
citizens of the United States equal protection under the law, including the right to life, liberty and
9 U.S. Congress. Civil Rights Act of 1875. 43rd Cong., 2nd sess., 1875. 10 Congress additionally stipulated that anyone that violated the law would be subject to a fine of five hundred dollars per infraction to be paid to the aggrieved party and if convicted would spend between thirty days to one year in prison. This proviso may seem harsh but the legislature was of the opinion that meeting such infractions with strict punishment was the only way to move the nation towards a more equal social atmosphere. Biglow 7
property and asserts that no state shall pass a law that impedes upon such rights. In the post-
Civil War era, the protections granted in the amendment were extended to persons of color. In the years leading up to the Civil Rights Cases, the Supreme Court affirmed Congressional directives that forbade states from discriminating based on race or color, however not private
individuals. A similar issue arose with the Civil Rights Cases, and yet after hearing the case, the
Supreme Court invalidated the Act of 1875 on 15 October 1883, with a vote of 8-1. Justice
Bradley issued the majority opinion, with Justice Harlan offering a dissent.
Bradley, along with the other seven justices that voted with him, wrote a lengthy opinion explaining and examining his position in the case. At the core of the cases that were brought before the Supreme Court, the justices had to consider whether Congress had the right and power to pass the Civil Rights Act of 1875. As Justice Bradley stated in the majority opinion,
The first section of the fourteenth amendment,-which is the one relied on,-after declaring who shall be citizens of the United States, and of the several states, is prohibitory in its character, and prohibitory upon the states.
The distinction between the Fourteenth Amendment applying to the states and not individuals was the deciding factor in Bradley’s mind about whether Congress had the authority to pass a law that dictated how individuals must act in their own private businesses. Bradley continued in his opinion by commenting that, “Individual invasion of individual rights is not the subject-
matter of the amendment. It has a deeper and broader scope.”11 The Fourteenth Amendment, the
Court later determined, did not grant redress of discrimination perpetrated by private citizens.
Additionally, the Supreme Court challenged the authority by which Congress enacted the
Act of 1875 on the grounds that the law does not counteract a specific state law or statute already
in existence. The Amendment does not give the legislature the ability to pass overarching laws
11 Civil Rights Cases, 109 U.S. 3 (1883). Biglow 8
that are not directly reacting to existing state legislation. In essence, in this instance, while
Congress does have the ability to enforce the Fourteenth Amendment by any legislation they
deem necessary, the Court concluded that passing a law that did not offer redress to existing laws was an inappropriate use of power. In the end, Justice Bradley affirmed the decisions in two of
the cases but found the remaining three sufficiently served to deem the Civil Rights Act of 1875 unconstitutional.
Justice Harlan’s lone dissent would in later years, become one of the most respected opinions issued by the Court, one of the most “eloquent and forceful….tightly reasoned, efforts.”12 However, at the time the Court issued its decision on the Civil Rights Cases in 1883,
he received mixed responses. Interestingly, he was the only former slave owner on the Court.
At the beginning of his opinion, Harlan wrote,
The opinion in these cases proceeds…upon grounds entirely too narrow and artificial. The substance and spirit of the recent amendments of the constitution have been sacrificed by a subtle and ingenious verbal criticism. 'It is not the words of the law but the internal sense of it that makes the law. The letter of the law is the body; the sense and reason of the law is the soul.'13
Harlan believed that his fellow justices interpreted the Fourteenth Amendment too narrowly, not allowing for other interpretations. The majority on the Court came to their conclusion in the case based on the intent of the law, rather than the spirit. This particular distinction first arose during the formation of the Constitution roughly a century earlier. As
Robert Yates stated in one of the Anti-Federalist papers, “…the judicial power…would be authorized to explain the constitution, not only according to its letter but according to its spirit
12 Tinsley E. Yarbrough, Judicial Enigma: The First Justice Harlan (New York: Oxford University Press. 1995), 149. 13 Civil Rights Cases, 109 U.S. 3 (1883) Biglow 9
and intentions…”14 The real difference between the majority and dissenting opinions arose
from the interpretation of the Constitution. The majority believed that Congress overstepped its
bounds by unilaterally implementing a law that did not provide a remedy for an already existing
state law. The dissenting opinion, on the other hand, believed that Congress was well within its
boundaries to establish the laws it did. The majority wanted to interpret the Fourteenth
Amendment by the words that were there, written in the Constitution. Justice Harlan advocated
reading between the lines. The issue of interpretation would become part of the larger issue of
separation of powers between the Supreme Court and Congress.
Two Sides of the Coin – Players in the Child Labor Dilemma
As the Civil Rights Cases of 1883 were argued and decided, the United States was experiencing an industrial revolution. Work began concentrating in urban areas, providing jobs in factories or mills to both children and adults. It was not until the middle of the first third of the twentieth century, that child workers became a social dilemma. The National Child Labor
Committee (NCLC) became one of Congress’ strongest allies in the fight against child labor.
The NCLC was established in 1904 by citizens in New York City concerned by the child labor problem arising in the country. Prior to the 1900s, some efforts had been made by individuals to affect change to fight the problem of child labor. It wasn’t until anti-child labor advocates realized they must band together that change began to occur. It was out of this realization that
the National Child Labor Committee was formed. While the NCLC originated in New York, the
movement against child labor had strong roots in the South. In fact, one of “…the foremost
champions of child-labor legislation in the South was Edgar Gardner Murphy, Episcopal clergyman, author and amateur astronomer.” It was the efforts of Murphy that helped to establish an Alabama Child Labor Committee in 1902 that fought for passage of legislation to
14 Robert Yates, Anti-Federalist Paper No. 81. Biglow 10
protect children in the South. Several organizations concerned with the welfare of the nation’s
children in New York established a New York delegation of the Committee a year later15. In
1904, the heads of the state Child Labor Committees realized the necessity for a national organization. The overall purpose of the National Child Labor Committee was that,
It should be plainly said that whatever happens in the sacrifice of adult workers, the public conscience inexorably demands that the children under twelve years of age shall not be touched, their childhood shall be sacred; that industrialism and commercialism shall not be allowed beyond this point to degrade humanity. Thus the function of the Committee will be a preventive one. By no other means than those that have been suggested can needless sacrifice of child life be prevented.16
Once the NCLC found its footing, they began to take action against the various areas of industry that employed children. In 1902, the Alabama Child Labor Committee took on the coal mines, believing the mines were the most dangerous place for children to be employed. They began in Pennsylvania, and the Committee’s actions were met with strong opposition from both sate government and mine owners. They believed the best way to keep children from being injured on the job was to fire the careless workers. In 1909, the Committee finally aided the
Pennsylvania legislature in passing a law that placed a sixteen-year age restriction on working in coal and bituminous mines. In 1907, the NCLC took on a new campaign; glass manufacturers.
It took them three years to finally get laws passed in New Jersey that instituted a minimum age of sixteen to work the night shift in the glass factories. Similar laws were passed in 1911 in
Indiana. By the time Congress took national action, the NCLC had moved on to the area of cotton mills in the Southern states.17
15 Trattner, 50-56. 16 Trattner, 59. 17 Trattner, 74-79. Biglow 11
One of the NCLC’s biggest accomplishments prior to the passing of any federal
legislation was the creation of the United States Children’s Bureau on April 9, 1912. President
Taft recognized the importance of the Bureau and did not take any action until he consulted the
NCLC on nominations for an individual to run it. Eventually, Miss Julia Lathrop was appointed
as the head of the Children’s Bureau. Unlike many agencies in the federal government, the US
Children’s Bureau
had no administrative power. Rather it was a research and propaganda agency directed to ‘investigate and report upon all matters pertaining to the welfare of children and child life among all our classes of people.’ It was to establish the facts, bring together widely scattered material and acquaint the public with conditions affecting the lives of American children.18
Additionally, the newly created Bureau aided the NCLC in their efforts to push through
child-friendly legislation in Congress. The Bureau, combined with later efforts by the legislative
body in Washington DC, alerted the public to the child labor problem. The National Child Labor
Committee’s persistence for the Children’s Bureau’s creation even prompted President Theodore
Roosevelt to campaign in support of national legislation to address the growing issue.
While the Children’s Bureau and the NCLC had significant resources at their disposal to conduct the research and investigations necessary to shed light on the child labor dilemma, the opposition wasn’t without resources and credible studies of their own. One such player in the side fighting to keep the federal government out of the affairs of the states was Mr. Thomas
Dawley, employed by the U.S. Department of Labor. Dawley conducted two of the major studies in support of the opposition, despite the disapproval of his superiors. Dawley concluded, after travelling throughout the south to inspect cotton mills that
families were far better off in the mill villages where living conditions were at least decent, wages were regular, and children
18 Trattner, 120. Biglow 12
might have some opportunity for education in a mill school, than they were on the small mountain…farms with no sanitation, few schools, back breaking work, and abject poverty. 19
Not only were investigations conducted to prove mill villages and towns were a safer,
more stable environment for children, but the opposition also brought up health concerns. Dr.
George Stiles conducted a study funded by John D. Rockefeller into the cause and cure of
hookworm, a disease affecting those living in sandy-soil areas. Much like Dawley’s research,
Stiles too concluded that migration to mill villages would improve the health of those in the region. He even suggested that the existing child labor laws be suspended to allow families to move to the mill villages.20
While the research of Mr. Stiles and Mr. Dawley gave reasons why mill villages were a
more suitable place to raise one’s children, employers had other motives for utilizing child
laborers in their businesses. Most employers of child laborers kept the children working in the
factories because they could pay the children less for the same work that adults would do.
Essentially, employing children in one’s mill or factory would cut the labor costs.
Perhaps the most influential member of the opposition to national child labor legislation
and control was David Clark, a Charlotte, North Carolina local. Clark was born to prominent
parents in North Carolina. His father, Walter, enjoyed a lengthy career on the North Carolina
Supreme Court. During his twenty-three year tenure on the Court, he spent sixteen years as
Chief Judge. President Wilson considered Clark’s father for a seat on the United States Supreme
Court but decided that Walter was too old to fill the position. On his mother’s side, Clark was
descended from William A. Graham. In his lifetime, Graham served as a governor of North
Carolina, a United States Senator, secretary of the Navy, Whig candidate for Vice President and
19 Hindman, 57. 20 Hindman, 57. Biglow 13
a Senator for the Confederacy. With this politically charged background, Clark grew to be an unwavering conservative, very unlike his liberal-leaning father. Initially, he supported child labor practices in the South because the cheap labor provided a competitive advantage over the well-established New England textile industry. Later, his personal philosophy centered around
two principles in his fight against federal meddling in the child labor question. Firstly, he was an
ardent advocate of laissez-faire capitalism. Secondly he was an ardent advocate of state’s
rights.21
Keating-Owen Child Labor Act of 1916 – Congress Steps In
At the turn of the century, child workers between the ages of 10 to 14 made up 6.02%
(1,750) of the total working population in the nation. In 1910, they constituted 4.34% (1,622) and in 1920 they represented 3.34% (1,417).22 During the first session of the sixty-fourth
Congress, the legislature passed the first law of the time to regulate child labor. The idea had
first been put forth in 1906 by Senator Albert Beveridge. While the NCLC finally agreed to
endorse the bill and its successor passed some ten years later as the Keating-Own Child Labor
Act of 1916, the NCLC saw internal division amongst its Northern and Southern members.
Original founding member Edgar Murphy, along with several fellow southern moderates left the
organization23. The Act was passed “to prevent interstate commerce in the products of child
labor, and for other purposes.” The law laid out quite clearly in the first section the prohibitions
on goods; no owner or manufacturer of mills or mines could ship goods over state lines which
thirty days prior had been produced by child workers under the age of sixteen, worked more than
eight hours, or worked before six in the morning or after seven in the evening.24 The law was
21 Hindman, 56. 22 Hindman, 31. 23 Hindman, 51-52. 24 U.S. Congress. Keating-Owen Child Labor Act of 1916. 64th Cong., 1st sess., 1916. Biglow 14 passed on 6 December 1915 and went into effect the following year on 1 September. Congress saw moderate compliance with the law until David Clark, owner of the Southern Textile Bulletin out of Charlotte, North Carolina became involved.
Mr. Clark became the chief opponent of all of Congress’ attempts to combat the child labor problem during the 1910s and 1920s. Mr. Clark took it upon himself to find mills or mines that had become entangled by suits under the law that he believed could challenge the Act of
1916. Finally, in 1918, Mr. Clark aided a local mill that had been sued by a father on behalf of his son. The case was tried in the Western District of North Carolina, and the judge deemed the
1916 Act unconstitutional. The plaintiff, Mr. Dagenhart, took the case through the appeals process all the way to the Supreme Court of the United States. The Court decided in favor of affirming the lower court’s decision to strike down the Act of 1916. Justice Day delivered the majority opinion.
Justice Day wrote in the majority opinion, “[t]he attack upon the act rests upon three propositions: First: It is not a regulation of interstate and foreign commerce; Second: It contravenes the tenth Amendment to the Constitution; Third: It conflicts with the Fifth
Amendment to the Constitution” In enacting the law in 1916, Congress utilized its power under the Commerce Clause of the Constitution, a power granted in Article 1, Section 8. Essentially, the Court addressed the question of whether it was in Congress’ authority to regulate interstate commerce in the manner it did. Day stated that the commerce power given to Congress is,
“…one to control the means by which commerce is carried on, which is directly the contrary of the assumed right to forbid commerce from moving and thus destroy it as to particular commodities.” 25 Much like the earlier Civil Rights Cases, Congress’ power is debated on whether the Court should make its decision in terms of the actual intent of the clause rather than
25 Hammer v. Dagenhart et al, 247 U.S. 251; 38 S. Ct. 529; 62 L. Ed. 1101; (1918). Biglow 15
the spirit of what might be additionally interpreted from the clause or Amendment. Day
concluded his opinion by making brief remarks about the Tenth Amendment, in which all of the
powers not expressly given to the national government are reserved for the states. He believed
that Congress had trampled upon the states’ rights to regulate their own goods. He affirmed the
lower court’s decision and deemed the Keating-Owen Child Labor Act of 1916 unconstitutional.
Justice Holmes wrote a dissenting opinion. Justices McKenna, Clarke and Brandeis concurred
with Holmes opinion.26 Shortly after the case was decided, a gentleman by the name of Charles
Hughes addressed the New York Bar Association to explain the decision handed down in
Hammer v. Dagenhart. Hughes mentioned other actions that congress has taken to regulate
interstate commerce, including the transportation of “…impure food and drugs…intoxicating
liquors, and women for the purpose of debauchery.” Hughes explained that these goods were
prohibited to curb harmful results. He stated that the child labor law did not fall within the realm
of Congress’ powers, agreeing with the Court’s opinion.27
Once news of the Court’s decision began circulating through the states, David Clark was
quick to make it known to his readers. He published a front page article in his bulletin on June 6,
1918, just three days after the Court’s decision was handed down, quoting from both Day’s and
Holmes’ opinions. Clark put forth his opinion as to the motivations behind those members of
Congress who aided in passing the law, “[t]he Keating Bill had been drawn largely for crippling
the cotton mill industry of the South.” He also praised the Court’s decision as a “righteous one.”
26 Holmes put forth the argument that Congress was perfectly within the power conferred by the Commerce Clause to pass the Act. He made the point that in granting the legislature the power to regulate commerce, it implies the right to prohibit as well. Holmes concluded his opinion by stating that the Act did not meddle with the rights of the States. The power to regulate within their borders still remained intact. 27 Raymond G. Fuller, Child Labor and the Constitution, (New York: Thomas Y. Crowell Company, 1923), 240. Biglow 16
Mr. Clark even extended his satisfaction to the whole state, “North Carolina interests are
singularly delighted, of course…” 28
In addition to the article Clark published regarding the Supreme Court’s decision, he also
published a handful of telegrams and letters sent in by owners of mills and factories throughout
North Carolina congratulating him on his efforts. The text of these messages reveals the sentiments held by many mill owners about the federal regulation of child labor. W.P. Wingate
from Waxhaw North Carolina wrote, “[c]ongratulate you on the part you played in killing child
labor law.” W. M. Sherard of Caroleen North Carolina wrote in part, “[m]ill owners as well as
operatives are under lasting obligations to you for…helping defeat such unwise and
unjust…legislation.” W.L. Siewers wrote, “[a]nyone who studies the law can see that the
principle it [the Child labor Law] embodies was dangerous to the South.” J.S. Stroud of The
Erwin Cotton Mills, Co in Cooleemee wrote in part, “…I want to congratulate you for the part
you have in defeating this law. You have been instrumental in putting this before the Supreme
Court in the right light and I am sure the hats of the South are off to you.” A. M. Dixon of
Trenton Cotton Mills praised Clark by writing, “[a]fter the passage of this act and when so
may…were willing to give up the fight, you did not surrender but urged …the fight be carried to
the Supreme Court. Those who work in the cotton mills and those who operate these manufacturing plants in the South are due you a debt of gratitude…” Finally, J.H. Webb of Eno
Cotton Mills, wrote, “I want to congratulate you on Supreme Court’s decision in Keating Law; also to thank you for the good work you have done in this and other matters affecting the manufacturers and their employees.”29
28 David Clark, “U.S. Supreme Court Declares Keating child Labor Law Unconstitutional” Southern Textile Bulletin 15 (June 1918) 3. 29 David Clark, “U.S. Supreme Court Declares Keating child Labor Law Unconstitutional” Southern Textile Bulletin 15 (June 1918) 4. Biglow 17
Despite his approval of the Court’s ruling, he made it clear that he did not necessarily
support the institution of child labor. He believed however that if North Carolina, or any other
state, desired to regulate the labor of children, then the state should pass such a law. In the
penultimate paragraph of the article, Clark declared, “…it was as much as to say that the end
sought [regulation of interstate commerce in relation to child labor] was so moral that any
means…were defensible in attaining the end.”30 Southern mill and factory owners argued that
the actions of Congress were to punish them for their livelihood.
The mill owners believed that the right to regulate their own goods was in fact protected by the striking down of the Keating-Owen Act. Clark claimed in his article that had the law been
deemed constitutional, “…it would have destroyed the cotton mill industry of the South as a
whole.” He goes on to state that the Court’s decision “[i]s the same as the throwing of a protecting arm around a great industry and safe-guarding it against a viciously unjust sectional attack.”31 Their elation at the Court’s decision was a mixture of relief that their businesses were
safe and that the state’s right to regulate its own commerce within its borders was protected.
Child Labor Tax Act of 1919 – A Second, Subtle Attempt
A year after the Supreme Court struck down the Keating-Owen Child Labor Act,
Congress, at the urging of the National Child Labor Committee, wrote a clause into the Tax Act
of 1919 that addressed goods produced by child laborers. By 1918-19, the NCLC had gained
national prestige and recognition with members of Congress as well as the President himself.
Photographer Lewis Hines joined the NCLC’s cause, helping to document the conditions of mills
and factories in which children worked. Much like the continual shifts in politics regarding the
30 David Clark, “U.S. Supreme Court Declares Keating child Labor Law Unconstitutional” Southern Textile Bulletin 15 (June 1918) 10. 31 David Clark, “U.S. Supreme Court Declares Keating child Labor Law Unconstitutional” Southern Textile Bulletin 15 (June 1918) 3. Biglow 18
government, interpretations of Hine’s photographs were dependent upon the time period and the
social atmosphere of the country. During the Progressive Era in which the NCLC operated,
Hines’ photographs helped bring thee social injustice to light. Hines did not believe in altering
or touching up photographs to make them look better. He believed “…[the] truth meant the
portrayal of social conditions in such a way that the appeal for reform would be effective”32.
The NCLC, along with the Children’s Bureau, set about finding a new method to control the use of child laborers in 1918, shortly after the Keating-Owen Act had been struck down by the Supreme Court. Both organizations believed that “…the use of the federal taxing power would be the quickest and best method of securing permanent federal child labor standards.”
The NCLC organized a Committee shortly before the end of the First World War to put together an amendment to the 1918 Tax Revenue Act that would utilize Congress’ taxing power to do just that. However, Senator Atlee Pomerene from Ohio introduced an amendment strikingly similar to the Committee’s idea.33 The Committee was now faced with a decision; continue to push
their own draft of the amendment through or endorse Pomerene and his bill. After conferring
with their legal advisers as well as members of Congress and the US Children’s Bureau, the
NCLC concluded that their support should be directed to Pomerene and his Congressional allies.
His version of the bill was the best option at the time. 34
Much like the attempt three years earlier, Congress used its power to levy taxes granted
by the Commerce Clause to try and curb child labor. Title 12, section 1200, of the Law stated
that any owner of a mill, quarry, or other manufacturing establishment that employed or
permitted to work children under fourteen years of age, or between fourteen and sixteen years
32 Peter Seixas, “Lewis Hine: From ‘Social’ to ‘Interpretive’ Photographer” American Quarterly 39 (Autumn 1987) 387. 33 Trattner, 139. 34 Trattner, 140. Biglow 19
more than eight hours per day, six days a week, during each taxable year, would be taxed in
addition to all other taxes levied by law, an excise tax of ten percent of the total net profits
received or accrued that year.35 Much like the Keating-Owen Act, Congress used the same
constraints on how long children may work and how old they must be to be legally employed.
David Clark once more stepped up to fight the new law. He raised funds to bring a case
up through the court system so that the case would eventually reach the Supreme Court. He
eventually decided on a father and son who brought suit against Atherton Mills, located in
Charlotte, North Carolina in 191936. Clark’s interest in this case proved surprising as he usually fought for the rights of mill and factory owners. Regardless, Clark took up Johnson {misspelled
in the court documents as Johnston) case37. The owner of the mill, in compliance with the Tax
Act, intended to discharge the plaintiff’s fourteen year old son, solely to comply with law. The
owner did not wish to incur the ten percent additional tax on his mill simply because he
employed children. The district judge, Judge James Boyd, for the Western District of North
Carolina affirmed the temporary injunction filed by the plaintiffs to keep the mill owner from
discharging the youth. In fact, the plaintiff’s attorney had time to make a very brief opening
statement before Judge Boyd announced he’d made up his mind. He announced that “…the
statute in his view was unconstitutional, and that no further argument was necessary.”38 Boyd’s
reasoning for handing down the indictment rested on the idea that he believed Congress was
once more infringing upon the rights of the states. Boyd was not concerned with whether child
labor was right or wrong. He was concerned solely with whether the federal government was
35 U.S. Congress. Child Labor Tax Act of 1919. 65th Cong., 3rd sess., 1919.
36 Trattner, 140-141. 37 Interestingly, the case that invalidated the Keating-Owen Child Labor Act of 1916 and the first case to challenge the Child Labor Tax Act of 1919 were brought by parents on behalf of their minor children. The parents were more concerned with the loss of potential wages from their children than their children’s physical well-being. 38 Trattner, 141. Biglow 20
overstepping its bounds, again. He recognized Congress’ indirect attempt to curb the use of
children in mills and factories.
The case was brought before the Supreme Court in December of 1919. Unfortunately,
the Court did not make a decision until 1922, four years after the original complaint was heard.
Thus, the Court had no choice but to dismiss the case due to mootness. At the end of Justice
Taft’s rather brief opinion, he reiterated the point of the case now being moot by stating “The
lapse of time since the case was heard and decided in the District Court has brought the minor, whose employment was the subject-matter of the suit, to an age which is not within the ages affected by the act. The act, even if valid, can not affect him further.”39
Even though the Johnston case did not do the work that many had hoped, convincing the
Court to invalidate the 1919 tax law, another case from 1922 did the job. During the time period when the Court reheard the Johnston case, it had on the docket Bailey v. Drexel Furniture, Co.
While this case was brought for a similar conclusion in mind as Atherton Mills v. Johnston, invalidating the tax act, Bailey v. Drexel Furniture, Co. dealt with the actual tax levied via the law. Bailey, a revenue collector for the government attempted to impose the tax, stating that
Drexel owed $6,312.79 for employing children under the age of fourteen in the 1919 taxable year. Drexel paid the tax but took the collector to court and regained the amount with damages.
The central issue facing the court with this case was whether the tax act was constitutional, falling in the proper powers granted to Congress in its ability to levy and raise taxes. In fact, one of the Justices who had concurred with the 1918 dissenting decision on
Hammer v. Dagenhart, Justice Clarke, was the only Justice to dissent in this case though he did not write a dissenting opinion. Newly appointed Chief Justice Taft wrote the majority opinion for the Court. As Taft stated in his opinion,
39 Atherton Mills v. Johnston, 259 U.S. 13; 42 S. Ct. 422; 66 L. Ed. 814; (1922). Biglow 21
It is the high duty and function of this court in cases regularly brought to its bar to decline to recognize or enforce seeming laws of Congress, dealing with subjects not intrusted[sic] to Congress, but left or committed by the supreme law of the land to the control of the states. We cannot avoid the duty, even though it require us to refuse to give effect to legislation designed to promote the highest good.40
Taft realized that it was the Court’s duty to temper Congress’ actions, whether they be good
intentioned or not. The Court, by recognizing its duty to counter legislation passed by the
legislature that may be harmful to the nation, implemented the checks and balances system
meant to keep one branch of government from overpowering the others, a notion engineered by
Alexander Hamilton and the Federalists in their initial proposition of the Constitution. The
balance between all three branches has been in constant motion since the Constitution was
ratified. There has always been a struggle to keep the branches in harmony. That struggle “for
institutional balance…frequently shifts with the politics of the moment – politics that are
themselves reflections of the search for institutional equilibrium” 41 according to authors Colton
C. Campbell and John F. Stack, Jr.
Taft made clear that the difference between the Child Labor Tax Act and previous tax
laws that the Court had upheld was the view of Congress penalizing individuals and companies if
they do not comply with their law. Additionally, Taft remarked that if the Court was to grant the
validity of the Child Labor Tax Act, Congress would thus have jurisdiction over any matter of
public interest or concern. He also cited Hammer v. Dagenhart as a precedent example of the
Court’s ruling in cases where Congress attempted to regulate child labor via the Commerce
Clause. Taft asserted that the Court could not differentiate the Keating-Owen law from the
40 Bailey v. Drexel Furniture, Co., 259 U.S. 20 (1922) 41 Campbell and Stack, Jr., 1. Biglow 22
current tax law because in both instances Congress regulated local labor conditions, infringing
upon the rights of the states42.
Finally, Taft cited a much-quoted passage from Chief Justice Marshall’s opinion on
McCulloch v. Maryland in attempt to drive home his point that Congress’ actions must be judged
only on their intent in the Constitution,
Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution; or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.43
In the end, much like Hammer v. Dagenhart, Taft reached the conclusion that the Tax Act was
invalid and the lower court’s ruling that forced Bailey to repay Drexel Furniture with interest,
was affirmed. Congress had once more overstepped its bounds in the eyes of the Court.
Child Labor Amendment – A Last Ditch Effort
Two years after Bailey v. Drexel Furniture, Co was decided by the Supreme Court,
Congress initiated one final effort to control the issue of child labor; a Constitutional
Amendment44. Congress was not alone in its decision to take a final action to abolish child labor. The NCLC was onboard as well. The decision in Bailey, unlike in Dagenhart was not
unexpected to the board members of the NCLC. The board even organized a subcommittee to
find a permanent federal solution, sending Secretary Owen Lovejoy to a conference of various
42 Trattner, 142. 43 Bailey v. Drexel Furniture, Co., 259 U.S. 20 (1922). 44 The authors of Congress Confronts the Courts make note that throughout the history of the discourse between the Court and Congress, Congress has assumed that the Supreme Court has the final say on matters brought before them. Additionally, Congress believed that the only way to ‘trump’ the Supreme Court was to pass a Constitutional Amendment as they did in 1924. Campbell and Stack assert that this view neglects the flexibility of the federal system and the relations between the three branches, the states and even the general public. Biglow 23
opponents of child labor being held in the nation’s capital45. Early in 1924, the House
Committee on the Judiciary proposed the following amendment to the Constitution:
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.46
The Senate Committee on the Judiciary also agreed to similar provisions of a proposed
amendment, and both Houses passed the Amendment with large majorities. The proponents of
the amendment were pleased with the outcome until the NCLC suggested last minute wording
changes, effectively splitting the ranks. However, the NCLC’s suggested wording was to ensure
that the amendment could not be misinterpreted to limit state power to regulate child labor47. In essence, the NCLC was learning from past encounters with the Court. They wanted to provide language that the Court had used in decisions on the subject as well as using terms referenced in the majority opinions by the justices. The NCLC’s concerns were not just within their own ranks, others believed that precise wording would ensure proper interpretation; “[b]ut there is a
‘twilight zone’. It is possible to imagine attempts to legislate under the amendment which would…be of a sort that sensible and just people would regard…as unreasonable”48. The NCLC
intervened in the final stages of the amendment to make certain that the phrasing would be in
now way construed as taking rights away from the states. Had the amendment agreed upon by
the House of Representatives and the Senate as it was, without the NCLC rewording, the
45 Trattner, 163-164. 46 U.S. Congress. Child Labor Amendment. 68th Cong., 1st sess., 1924.
47 Trattner, 166. 48 Waite, 187. Biglow 24
proponents of the amendment feared that Courts would be able to find a way by which to
invalidate the amendment.
The question now posed before the people of America was not whether there should be
an amendment to the constitution but rather whether the specific proposal should be considered.
It is undeniable that two US Presidents, Woodrow Wilson and Warren Harding, endorsed some
sort of amendment in their addresses to the nation following the decision in Bailey v. Drexel
Furniture, Co49. Despite their recognition of the child labor issue, even the voice of the
President of the United States was not enough to convince the public that an amendment was the
best decision at the time. The word of the President “…ought to secure or the claim that some
amendment is desire…”50 but the nation was not yet ready for such a drastic change. Even those
individuals examining the proposed amendment recognized the good that federal legislation in the past had done, however brief it may have been. In fact, the Children’s Bureau their 1924
Annual Report denied the issues of states’ rights by asserting,
Federal legislation did not discourage state initiative, nor interfere with the enforcement of state laws, nor discourage state effort in behalf of the children of the state. On the contrary, it stimulated the states which had standards lower than those set up by the federal laws to make the protection provided by the state laws equal to that provided by the state laws…51
The opponents of such an Amendment, mainly the manufacturers and businesspeople of
the states whose compliance with the previous pieces of legislation had gone lax, were not shy
about speaking out against Congress’ last attempt. Swift mobilization by the amendment's
opponents, however, led to a fierce battle over ratification on the state level52. States
representative of the opposition included not only southern states such as Georgia, Alabama and
49 Waite, 185. 50 Waite, 185. 51 Waite, 184. 52 Novkov, 374. Biglow 25
North Carolina but northern states such as Illinois as well. While Illinois was not so entirely dependent on the labor of children, it did have some history with the issue. The state had on its law books, a labor regulation as of 1893 that mentioned children. The first comprehensive child labor law in the state was passed in 1897, restricting age limits, no child under fourteen shall be permitted to work for wages and hours worked per week, no child under sixteen could work more than sixty hours in a week53. Perhaps Illinois’ decision to not ratify the amendment
stemmed from the belief that their law on the books served to protect the child workers
adequately enough and additional federal oversight was not necessary.
The leaders of the opposition included none other than Mr. David Clark. Clark ran a
united front with Mr. James A. Emery, the general counsel for the National Association of
Manufacturers (NAM). The NAM was located in Washington DC. The action against the
proposed Amendment was so intense that several organizations who banded together with Clark
and Emery were created for the sole purpose of fighting to keep the federal government out of
the affairs of the states54. NAM fought against other federal initiatives during the time as well as child labor, including women’s suffrage, laws providing maternity, child health and welfare programs as well as giving federal aid for education.55.
Testimony was given before the House Committee, including David Clark, the champion
of the Southern way of life. Mr. Clark gave his testimony before the Committee partially for his
own interest and on behalf of a Mrs. L.B. Bush from Alabama, who represented the interests of
the manufacturers of the same state. A portion of Clark’s testimony in regards to his position
against the proposed amendment appears below:
53 Laws of the State of Illinois Enacted by the Fortieth General Assembly. Springfield: Phillips Bros., State Printer, 1897. 54 Trattner, 166. 55 Trattner, 167. Biglow 26
Mr. Clark: It has been presented to the Committee that in North Carolina and Georgia and other states that the employment of many children under fourteen years of age is permitted. Several of the newspaper articles have so stated. On yesterday we were able to show, from the testimony of the Superintendent of Child Welfare of North Carolina that only 132 certificates were issued in 1923 in North Carolina and that they only found 66 working in the mills…I have statistics for Georgia, which I would like to put in the record.
Mr. Dryer: What do you mean by statistics?
Mr. Clark: I mean a statement showing the number of children given certificates to be employed last year.
Mr. Dryer: Is that a record of some official charged with that duty?
Mr. Clark: Yes, sir. I can give you the whole letter of Mr. McLaurine of Atlanta, Georgia, and statistics…he is the Secretary of the Cotton Manufacturers’ Association of Georgia, and he gives me the number of permits issued…and he evidently went to the State Department and got the number of certificates issued.
Mr. Summers: Now, I think, before such a statement goes into the record we ought to have the record from the very best source available, and if someone sends in here a statement of the proper official of the State of Georgia with reference to these records, that ought to be incorporated in the hearings. But the witness ought not to take a memorandum written on the back of a letter, or on the bottom of the sheet on which a letter is written , from the secretary of some organization indicating what the records of the state of Georgia disclose.
Mr. Clark: That is my position exactly in regards to the matter.56
This brief excerpt from Clark’s lengthy testimony before the Senate Committee on the
Judiciary, showcased the real discourse and dialogue going on between the public and Congress
over the issue of the Child Labor Amendment. While Clark only discusses introducing some
statistics on child labor in Georgia, one can discern a certain tone from his words, an impatience
56 David A. Clarke “David Clark’s Testimony Before Judiciary Committee” Southern Textile Bulletin 26 (March 1924) 7. Biglow 27 with the proceedings. He is strongly set in his belief that there should be no amendment, that it would harm the South and its industry. The discourse with Mr. Dryer and Mr. Summers provided the evidence that the Committee had not simply made up its mind on whether to propose the amendment. They were genuinely interested in the other side of the argument.
Their insistence on procuring the actual document from the State Department of Georgia demonstrated their thorough consideration of the topic. They may not have doubted the legitimacy of Mr. Clark’s information or the method by which his colleague from the Cotton
Manufacturer’s Association of Georgia obtained the statistics. The Committee merely desired to have all of the facts in front of them from the source itself. It was a protection against the future possibility that states would question the validity of the data presented.
Eventually, much like the two pieces of legislation that came before it, the Amendment met defeat, this time at the hands of the state legislatures. The Child Labor Amendment missed ratification by eight states, mostly in the South that opposed the power it would give Congress to meddle in state affairs. The long-standing push and pull of states’ rights truly came to a head at this point in time. The states now had the say in the method by which child labor was handled.
Congress may have proposed the amendment, but the states were the ones responsible for passing it. The power finally lay in the hands of the mill owners and factory foremen. They took advantage of this newfound power, influencing their legislatures in refusing to ratify the amendment.
Conclusion
Positive change in terms of child labor finally arrived in 1937, the start of President
Franklin D. Roosevelt’s New Deal, creating new administrations and programs to bring the country out of the Depression. One such program was a proposed restructuring of the Supreme Biglow 28
Court. Fearing for their own livelihoods, the justices began to make changes in some of their
decisions, eventually even reversing cases such as Hammer v. Dagenhart and Bailey v. Drexel
Furniture Co. The struggle against child labor finally saw a conclusion as “the drive for its ratification ended with the Supreme Court's validation of the Fair Labor Standards Act in
1941”57. The law was originally passed in 1938 as the Fair Labor Standards Act of 1938 and
much like the other laws that had come before in the first third of the twentieth century, was
challenged on its constitutionality in United States v. Darby 312 U.S. 100; 61 S. Ct. 451; 85 L.
Ed. 609; (1941). This case dealt with the Western District of Georgia quashing an indictment
under the Fair Labor Standards Act due to the claim that the law was unconstitutional. They
believed Congress had once more overstepped its bounds in regulating commerce. The key
difference between this law and the laws passed by Congress in 1916 and 1918 were that it dealt
with overall labor conditions affecting all workers, not just children. There is a section detailing
“oppressive child labor” but makes note that
oppressive child labor shall not be deemed to exist by virtue of the employment in any occupation of any person with respect to whom the employer shall have on file an unexpired certificate issued and held pursuant to regulations of the Secretary of Labor certifying that such person is above the oppressive child labor age.58
The Fair Labor Standards Act gave larger leeway for what was acceptable as work done
by minors, a provision neither the Act of 1916 or 1918 did. This regulation of conditions for all
workers changed the minds of the Justices on the Supreme Court, now under the influence of
Chief Justice Charles Evan Hughes. The new blood on the Court also aided in the affirmation
that Congress within its bounds to regulate the interstate commerce of goods produced under
certain working conditions.
57 Novkov, 374. 58 U.S. Congress, Fair Labor Standards Act of 1938, 75th Cong. 3rd sess. 1938. Biglow 29
The debate over child labor as an economic result of the industrialization movement in the early twentieth century served to intensify once more the struggle inherent in the federal government since its inception: the balancing act of checks on the branches of government.
Additionally, the child labor cases that arose between 1916 and 1922 reiterated the constant struggle between states’ and the powers of the federal government, specifically the legislature.
Child labor existed in America since the eighteenth century but it took a revolution of technology to raise the awareness that there was something inherently wrong with allowing young children to work in such dangerous and hazardous occupations.