Guest Essayist: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation, and a legal commentator

Proposed Amendment: Child Labor Ban Amendment:

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.

The Child Labor Amendment is a proposed and still-pending amendment to the US Constitution offered by Ohio Congressman Israel Moore Foster in1924, during the 68th Congress.

Perhaps one of the biggest political fights of the 20th century involved the question of whether the federal government had or should have authority to regulate child labor.  Alexander Hamilton and Horatio Alger stood on one side representing those who thought that child labor was a positive influence and on the other side stood influential novelist Elizabeth Stuart Phelps and a host of high society New Englanders who believed that this constituted a completely unnecessary and even ruinous exploitation of the nation’s youth.

Estimates varied about the size and scope of the problem.  The 1880 census reported that roughly 17% of all children were “gainfully employed.”  By 1910 that number had risen to nearly 19%.  However even at its highest point, the lion share of the youths working did so on a farm, and mostly that of their own families.  Fewer than 25% worked in canneries or any manufacturing plants.

The first state to restrict child employment was Massachusetts.  In 1836 they banned 15 year olds from manufacturing jobs and then six years later adopted a law making it illegal to allow 12 year olds to work for more than 10 hours a day.  By the turn of the century 28 states had adopted child labor laws.

However, leaders of the Teddy Roosevelt wing of progressivism within the Republican Party felt that state action was insufficient.  They argued that it was essential that the feds take over these regulations in order to make them uniform and also in order that the rules could be as aggressive as was practical to end the scourge of child labor.

Historians report that they started by trying to ban the interstate transport of articles produced in factories or mines that employed children under 14.  The Department of Commerce announced the creation of a Federal Children’s Bureau and began a full-throated contribution to the fight with updates and missives about the need for federal action.

Senator Albert Beveridge an early backer of a federal ban solicited and reported on the claims by known socialist agitators that there were thousands of “thumbless boys and girls who don’t know how to play.”

The promoters of federal action even went so far as to include a ban in the 1912 Republican platform causing President Taft to break with the party when he declared federal child-labor law unconstitutional.  Unfortunately by the time that President Wilson would come into office – even after having opposed the concept while campaigning – he would determine that it was expedient to sign a ban into law.  The Supreme Court would promptly strike down the measure arguing that “Freedom of Commerce will be at end, and the power of states over local matters may be eliminated” if the law were allowed to stand.

Nevertheless, Congress was undaunted.  Congress came back this time with a measure that proposed a 10% profits tax on all industries that violated the recommended child labor standards.  This too the Supreme Court struck down – this time 8-1.

It was then that the advocates decided that a Constitutional Amendment was in order.  Congressman Israel Foster of Ohio and Senator Samuel Shortlidge of CA introduced the measure.  They worded the amendment to cover not just employment, but work generally.  In other words, the amendment purported to give the federal government the power to intervene on behalf of any child under the age of 18 who was responsible for “chores” as well as those who actually worked at factories.

Starting off with support from the NEA, the American Legion, the YWCA, the PTA, and even Presidents Warren and Harding the amendment seemed unstoppable.

The Child Labor Amendment has been ratified by the legislatures of the following 28 states:

  1. Arkansas in 1924
  2. Arizona in 1925
  3. California in 1925
  4. Wisconsin in 1925
  5. Montana in 1927
  6. Colorado in 1931
  7. Illinois in 1933
  8. Iowa in 1933
  9. Maine in 1933

10. Michigan in 1933

11. Minnesota in 1933

12. New Hampshire in 1933

13. New Jersey in 1933

14. North Dakota in 1933

15. Ohio in 1933

16. Oklahoma in 1933

17. Oregon in 1933

18. Pennsylvania in 1933

19. Washington in 1933

20. West Virginia in 1933

21. Idaho in 1935

22. Indiana in 1935

23. Utah in 1935

24. Wyoming in 1935

25. Kentucky in 1936

26. Kansas in 1937

27. Nevada in 1937

28. New Mexico in 1937.

However, two arguments would ultimately stop the Child Labor Ban amendment in its tracks.  The first was the claim that alcoholism and drunkenness among fathers was the reason why so many young people were in the workplace.  And secondly, groups like the Women’s Constitutional League of Maryland effectively explained that at the end of the day, “The fathers and the mothers are better prepared to pass judgment upon the needs and the welfare of their children than this Congress is.”

A new opposition coalition developed made up of the Catholic Church, farmers, and ordinary families.  Together along with the claim that most of the “childsavers” were childless caused much of the momentum to slow and then ultimately reverse.

In true ironic fashion, it was Massachusetts where the amendment would face its major defeat.  The Archbishop of Boston mounted a vigorous campaign against the amendment as being anti-family and claimed that it would “take from parents the right and duty to educate and guide their children.”  Suddenly the Lutherans joined in the effort.  An advisory referendum was scheduled for the state and the amendment lost in a lopsided vote 697,563 to 241,461.  This was the beginning of the end.

Perhaps the most significant consequence of the introduction of the Child Labor Ban Amendment is that the right of the people to determine ultimately what the policies and rules of their nation would be remain with the people through the state legislatures.  In a landmark case, Coleman v. Miller the US Supreme Court in a dispute over the Child Labor Ban Amendment officially recognized that if Congress does not specify a ratification deadline, then the proposed amendment remains pending business.  Today, with 50 states in the Union, the ratifications of 10 additional states would be required to incorporate the proposed Child Labor Amendment into the Constitution.

Horace Cooper is a legal commentator and the Director of the Center for Law and Regulation at the Institute for Liberty

June 19, 2012

Essay #87


3 replies
  1. Ron
    Ron says:

    Thanks Mr. Cooper. Interesting how such similar concepts in all areas of life continue to be proposed by “Progressives.” All of them assume that parents, and adults in general, are incapable of doing the right thing and that the federal government must involve itself in even the most minute decisions of families and communities. I suspect this trend is evergreen, since we continue to be faced today with these issues that people 100 years ago thought were settled in favor of families and communities. Conservatives have always been and will always be on the defensive against the intrusion of the nanny state.

  2. H Cooper
    H Cooper says:

    Your observation is quite insightful. One of the fundamental premises of our Constitutional system is that self government begins at the lowest level possible starting with the individual. Then moving to the local, then state, then federal. Progressives of all stripes often seem to have this notion reversed, tending to start with federal and leaving very little space for individual choice and freedom.

  3. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    If ten more states actually do ratify this amendment it would put a reality check upon the US Dept of Labor and all the related minimum wage, work hour, behavioral-life choices equal opportunity, and health and liability insurance law. The states never granted the federal government the authority to regulate labor and an amendment to grant regulation of child labor puts in question the federal presumption of regulating all labor including age laws. Regulation of labor or manufactures were implicitly denied the federal government in the ratification of the US Constitution by expressed delegate debate pointing the question and at no time has there been any amendment ratified for the federal government to trump the state level responsability of labor or manufactures civil affairs.

    What is more precarious is how corporations were given the incentive by the federal government to create the health insurance exchanges that Obama Care came along latter to liberalize. This is because corporations were given a tax break, write-off by the federal IRS for offering group health insurance, which in turn coddled 1000’s of clients into master policies rather than the scrutiny of penny-watching individual consumers of health insurance. This destroyed much competition out of the health insurance industry thereby assisting in inflating health costs among other federally enacted measures. Now after corporations were given a tax break for providing health insurance we have the federal government issuing a tax penalty on individuals who do not carry health insurance, which to clarify is not health care itself but is only a payment method, which pays as low as five cents on the dollar in that corporate system. So if someone wants to utilize a different payment method than the forced corporatism system the federal government has fostered, then they are penalized while corporations are rewarded for extending such benefits.

    Essentially, when it comes to any civic or civil matters, such is federally unconstitutional to enact unless it is specifically enumerated in the US Constitution or by an amendment. Being that the country is a republic it is a principal that civic affairs stay locally enacted and regulated, for having a city a thousand miles away dictate the affairs over a thousand other cities fosters egregious systems that only tend to be mismanaged and become spoils systems at the benefit of a few. And all the progressive arguments of how much civil wrongs must be corrected by government really fail to grasp that the solutions are always at the state level: either as a state law or by ratification of 3/4ths the states. If it is not workable, feasible, or plausible for a state government to do, then what of the human condition will magically improve by virtue of promulgating federal enactments if the states were not behind it? If there be some inherent defect in states handling civic affairs then what is will somehow impove on a national level?


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