YOUNG BOYS IN SHORT PANTS VS. OLD MEN IN BLACK ROBES: THE BATTLE TO END CHILD LABOR IN THE UNITED STATES
Schuman, Michael F.
Quirk, Rory F.
There was a time in this country when little children worked legally and on a widespread basis. In the period following the Civil War, as industry grew, children often as young as 10 years old but sometimes much younger toiled. They worked not only in industrial settings, but also in retail stores, on the streets, on farms and even in home-based industries. As progressive reformers gained traction during the last quarter of the nineteenth century, efforts expanded at the State level to outlaw the employment of small children. The move toward State-level reforms proved challenging. Many States, particularly in the South resisted the effort. Frequently, child labor law opponents denied the problem existed and aggressively extolled the virtues of children in the workplace. This foiled the goal of uniform laws across the country achieved through State action.The failures at the State level caused many reformers by the early 1900’s to believe that a federal law might be the best option. The limited role of the federal government under the Constitution however made such a prospect difficult. Many constitutional experts, congressmen, and presidents believed such a law was unconstitutional. In the face of widespread public support for curtailing child labor, a law based on the Commerce Clause of the Constitution was passed in 1916. After the was struck down by the Supreme Court, Congress attempted to use its taxing power to achieve the same goal. That law too was struck down by the Court. As a result, some children, particularly those in the States with the lowest legal protections, continued to work. Frustrated reformers and legislators sought to outlaw child labor through a constitutional amendment. This too would fail. An attempt by President Franklin Roosevelt to eliminate child labor through executive action through the National Industrial Recovery Act would also be defeated when that law was found unconstitutional. It would not be until 1938 that Congress would finally pass a child labor law that would be upheld by the Court.This thesis will analyze the use of child labor in the United States during the post-Civil War period through the 1938 enactment of the Fair Labor Standards Act (FLSA) and subsequent 1941 Supreme Court decision upholding the FLSA. The passage of the FLSA was the result of a multi-decade battle waged by reformers in the face of numerous obstacles, most notably the Supreme Court. This thesis specifically examines the decisions of the Court that foiled the reform efforts—particularly in Hammer vs. Dagenhart and Bailey vs. Drexel Furniture. These decisions while controversial were not clearly out of line with the case precedents at the time. These decisions led to more children in the workplace, and made the Supreme Court responsible for a two-decade period where it was the Court alone that stood in the way of a federal child labor law. Although this was the case, the relatively small number of children that would have been impacted by a federal child labor law, technological changes, and immigration reduced the impact of the Court’s 1941 approval of the FLSA. While this thesis examines the particular circumstances involving child labor, it also highlights the balance between States’ rights and federal power under the Constitution, a topic that remains relevant to this day.
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Arguments in the cases arising under the Railway Labor Act and the National Labor Relations Act before the Supreme Court of the United States, February 8-11, 1937. The Virginian Railway Co. v. System Federation No. 40; the Associated Press v. National Labor Relations Board; Washington, Virginia and Maryland Coach Co. v. National Labor Relations Board; National Labor Relations Board v. Jones & Laughlin Steel Corp.; National Labor Relations Board v. Fruehauf Trailer Co.; National Labor Relations Board v. Friedman-Harry Marks Clothing Co., Inc United States. Supreme Court (Washington, Govt. print. off., 1937, 1937)