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.