He applied the “Page 99 Test” to his new book, Child Labor in America: The Epic Legal Struggle to Protect Children, and reported the following:From page 99:Learn more about Child Labor in America at the University Press of Kansas website.On August 21, 1918, representatives from the American Federation of Labor, National Child Labor Committee, Women’s Trade Union League, National Consumers’ League, and various government officials who were responsible for enforcing the Keating-Owen Act met to draft a new child labor bill. The committee had decided early on not to seek a constitutional amendment but to find some path under the enumerated powers of Congress and Supreme Court precedents. The Kenyon postal bill was promptly rejected because there were too many questions over using the postal service as a federal police power and implementation would be difficult. Several of the pending tax bills were also found unsatisfactory. After numerous meetings and discussions, the group coalesced around a plan to levy an excise tax upon the products of any mill, cannery, workshop, factory, or manufacturing establishment in which children under the age of fourteen were employed, or children between fourteen and sixteen years had worked more than eight hours in any day, or more than six days a week. President Wilson approved the proposed legislation, and it was submitted to Senator Pomerene with the recommendation that it be attached to a pending revenue bill.On page 99 of my book, I discuss how Progressive Era reformers sought a new strategy to curb child labor exploitation after the Supreme Court struck down the first federal law, the Keating-Owen Act, in Hammer v. Dagenhart (1918). In a closely divided opinion, the Court held that Congress could not regulate child labor under its constitutional authority over interstate commerce because local labor conditions were the responsibility of the states.
Some states had restricted child labor since the 1840s but many of the laws were weak and lacked enforcement mechanisms. By the early 1900s, reformers lobbied for tougher, uniform regulations using federal power. Unfortunately, page 99 doesn’t include any compelling quotes or anecdotes, but it represents an important stage in the decades-long struggle to end oppressive child labor through national legislation.
When the tax measure was submitted to Congress, Senators Atlee Pomerene, Irvine Lenroot, and William Kenyon jointly revised the bill. First, instead of taxing products made with child labor, they imposed an excise tax on the profits of companies that used child workers. Second, responsibility for enforcement was given to the commissioner of internal revenue rather than the Labor Department. The senators believed that their strategy strengthened the bill against any constitutional challenges.
The Child Labor Tax, as the provision was called, passed by huge majorities in both chambers of Congress as part of a massive revenue bill. Most reformers, politicians, and even business owners anticipated that the Supreme Court would uphold the law. During the nearly three years it was enforced, many employers stopped using child workers. The Supreme Court, however, struck down the tax law in Bailey v. Drexel Furniture Company (1922).
The rest of my book chronicles the subsequent legal battles over oppressive child labor in America. With the adverse decisions in Hammer and Bailey, reformers turned to amending the Constitution to give Congress the explicit enumerated power to regulate child labor. An amendment was passed in 1924 but the measure failed ratification in the states. A third attempt to restrict child labor under the National Industrial Recovery Act as part of FDR’s New Deal was also struck down by the Supreme Court.
The final victory over child labor was not achieved until the Supreme Court upheld the Fair Labor Standards Act in U.S. v. Darby Lumber (1941). By that time, however, the worst forms of child labor exploitation had ended. It’s fair to conclude that the Supreme Court was not a catalyst for social change on the issue of child labor.
--Marshal Zeringue
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