To promote the health and welfare of children

I don’t know if you’ll find this comforting or frightening, but I think it’s an interesting take by Andrew Koppelman:

It took decades for Congress to address the problem. When, at long last, federal legislation was passed, some people raised constitutional objections, but few took them seriously. The objections required the Supreme Court to adopt unheard-of constitutional theories, hamstringing well-established powers on the basis of hysterical fears about a tyrannical federal government. Even the law’s opponents were surprised when the Court took those objections very seriously. Some warned that the Court was overreaching, and that its intervention would seriously hurt large numbers of innocent people, but the Court thought it was more important to rein in Congress. You might assume I’m talking about health care reform. I’m not. I’m talking about child labor—and a 1918 decision by the Supreme Court that history has not looked kindly upon.

The parallels between the child labor issue and the health care issue are remarkable. In both cases, the legislation in question was the product of a decades-long struggle. And so in 1916, Congress, using its power to regulate interstate commerce, banned the interstate shipment of the products of child labor. When it defended the law in Court, the government explained that this was an interstate problem: “The shipment of child-made goods outside of one State directly induces similar employment of children in competing states.”

Both then and now, challengers to the statutes had to propose that the Supreme Court invent new constitutional rules in order to strike them down. At the time it considered the issue in 1918, there was nothing in the Supreme Court’s case law that suggested any limit on Congress’s authority over what crossed state lines. On the contrary, the Court had upheld bans on interstate transportation of lottery tickets, contaminated food and drugs, prostitutes, and alcoholic beverages.

That’s why the Supreme Court’s invalidation of the law in 1918 astounded even those who had most strenuously opposed enactment. The Court responded that unlike all the contraband that it had permitted Congress to block, the products of child labor “are of themselves harmless.” This meant a completely novel constitutional doctrine: The Court took unto itself the power to decide which harms Congress was permitted to consider when it regulated commerce.

The decision provoked a wave of national revulsion. Congress responded that same year with a second law, a tax on products of child labor. Here, Congress presumed it was surely acting within its rights. The Constitution gives Congress a nearly unlimited power of taxation. But the Court struck down this law, too, in Bailey v. Drexel Furniture Co., a decision that is unashamedly cited by opponents of the health care mandate (who need to beat back the claim that the mandate is a valid exercise of the taxing power).

Hammer v. Dagenhart was overruled in 1941. That year, in United States v. Darby, the Court upheld the Fair Labor Standards Act, which included restrictions on child labor. Bailey has never been formally overruled, but it has been neglected and regarded as a dead letter—until, that is, it proved useful in challenging the mandate.

The prevailing claim in Hammer was made by a father whose sons had been working sixty hours per week in a North Carolina factory. He claimed that the law violated his rights by depriving him of his children’s earnings. Several years later, Reuben Dagenhart, one of those boys, reflected on the constitutional rights that the Supreme Court had given him. “We got some automobile rides” from the wealthy businessmen’s committee that had financed the litigation. “They bought both of us a Coca-Cola. That’s what we got out of it.”

For all of those optimists who are saying overturning this law will lead to a better law, here’s a handy timeline of the struggle to end child labor you may want to consider. It begins in 1832 and ends in 1938.

h/t eemom, from the comments

32 replies
  1. 1
    Baud says:

    For all of those optimists who are saying overturning this law will lead to a better law,

    I hate this argument so much. It’s of course not impossible that this could happen, but there is no reason to believe it is the probable outcome (especially during a reasonable time frame).

  2. 2

    @Baud: A better law, single-payer, an NHS/US, or something hybrid, like the French, would save money, increase coverage, improve health outcomes and level our competitive playing field with other industrial nations, is simply the logical solution. Nothing else makes any sense.

    It can’t not pass, it must pass, it will pass — in my grandchildren’s time.

  3. 3
    Kay says:


    Koppelman got some nasty responses on this from conservatives. One of the claims was unions (always the dreaded union bosses) worked against child labor because they didn’t want children driving down wages. HORRORS. Working people were acting in their own best interests!
    In other words, liberal motives weren’t 100% PURE.
    Of course, there is no examination of the motives of the wealthy people who bankrolled the litigation opposing federal regulation.
    In conservative-world, all members of any liberal alliance must be pure and selfless, while conservatives have absolute freedom to work in their own financial self-interest, with no examination of ethics or morals.

  4. 4
    Baud says:

    @Davis X. Machina: Nothing must pass unless you believe that society can never go into decline. Regardless, I see no reason to believe that this better system will be achieved more quickly if the Supreme Court strikes down the ACA.

  5. 5
    Baud says:

    @Kay: IOKIYAR goes back a long way.

  6. 6

    @Baud: Yeah, but you’re assuming the political nation isn’t simply a collective of profit-maximizing, rational performers of the hedonic calculus?

    Whatever made you think that, I wonder.

  7. 7
    p.a. says:

    I had to laugh (sardonically) at a TPM article last week about how Roberts will need to think about this decision in terms of his legacy. As if. This will be “The Fox and the Scorpion”, without question. Roberts will take the lead overturning of ACA- it’s what he’s been bred for.

  8. 8
    alicia-logic says:

    @Kay: @Kay:

    In conservative-world, all members of any liberal alliance must be pure and selfless, while conservatives have absolute freedom to work in their own financial self-interest, with no examination of ethics or morals.

    This is an implicit admission that they’re working for Evil. Everyone knows the Hero can’t resort to certain methods, but the Villain may act without constraint.

  9. 9
    Baud says:

    @Davis X. Machina:

    Whatever made you think that, I wonder.

    Lucky guess?

  10. 10
    kay says:


    This is odder, and more fundamental than that.

    It’s real offended outrage that working people formed an alliance with humanitarians. I HOPE they formed alliances. God knows conservative courts weren’t going to give them a fair hearing.

    WTF? Only plutocrats may form alliances and lobby? Where does this zany outrage come from?

    Working people are practicing politics! How dare they.

  11. 11
    rageahol says:

    @Davis X. Machina: just so you’re aware, the current UK government is actively working to dismantle the NHS.

    They never stop. They are well funded, they are well-distributed, they take any advantage they’re given, and they never ever stop.

    We can’t either.

  12. 12

    @kay: WTF? Only plutocrats may form alliances and lobby? Where does this zany outrage come from?

    From loooooooooong ago.

    The peasants don’t fight fair, with horses and lances and armour. How in a fair and beautiful world can Someone de Something, eleventh Duc de Quelquechose, Maréchal de France, get killed by some damned Welshman with a bow from a hundred yards away, or even worse, by one of his own tenant farmers with a billhook.

  13. 13

    @rageahol: And the Tories can count on a near-majority of voters well-served by the NHS for what is now three generations… that and Nick Clegg’s ego is enough to win at least the last general election

    Still, gotta show those damned asylum-seekers, and skunk-smoking hoodie-wearers, and Bulgarian plumbers, and centre-forwards from Cameroons who’s boss.

  14. 14
    Baud says:

    @kay: Their whole system depends on common folk remaining disorganized and unfocused. Successful alliances threaten that state of things.

  15. 15
    kay says:

    @Davis X. Machina:

    I think it’s laughable that liberals are supposed to apologize for unions on this.

    Bad, bad union bosses, ending child labor to bring up wages.

    Screw that. I think that’s a great goal, and if the benefit to children from this labor-humanitarian alliance was collateral to unions, and not primary, well, win/win! Celebrate all around. Good job.

  16. 16


    I’ve also noticed that those liberals with the “it’ll be better in the long term” viewpoint are invariably well-off, well-insured, under-40 white professionals who have nothing to worry about.
    Those to the left of me have been pissing me off even more than those to the right of me, lately. Wonder why that is.

  17. 17
    kay says:

    @Davis X. Machina:

    It’s like what we hear now, registering voters.

    “You’re only registering voters to advance your agenda!”

    No shit. What are you doing, and why? They’re practicing Free Speech and Democracy with their massive lobbies and ad wars at 30,000 feet while we’re involved in dirty, nasty Politics.

  18. 18
    piratedan says:

    I just wish our well funded betters were better students of history. It seems pretty apparent to me that when their collective behavior reaches a breaking point of unspeakable selfishness that their heads invariably end up on pikes or their charred remains end up in unmarked ditches. Then again, since this only happens every couple of hundred of years they feel that THIS TIME we’ll keep the masses in their proper place.

    It seems strange indeed to see them want to plant their flag on this hill in the name of indifference to suffering and the right to practice casual cruelty.

  19. 19
    Mark S. says:

    The opinion in Bailey v. Drexel Furniture Co was written by William H. Taft, the only person to be both president and Supreme Court justice. He sucked pretty hard at both jobs.

  20. 20
    piratedan says:

    @kay: hey now, they’re only practicing voter suppression because Mammon ordered them to, their motives are pure in that regard….

  21. 21
    Baud says:

    @Judas Escargot, Your Postmodern Neighbor:

    Wonder why that is.

    Familiarity breeds contempt, I guess.

  22. 22
    gene108 says:


    You really don’t appreciate how much you can channel Kyle Reese, when talking about the modern Conservative movement:

    Kyle Reese: Listen, and understand. That terminator is out there. It can’t be bargained with. It can’t be reasoned with. It doesn’t feel pity, or remorse, or fear. And it absolutely will not stop, ever, until you are dead.

    These guys never stop. They don’t quit. They don’t care how much they lose. They want things their way and will not stop until they have everything they want.

    Social Security privatization went down in flames. No. Big. Deal. They’ll just try vouchers for Medicare instead, while they figure out how to sell out Social Security.

    These guys really want to return to a Guilded Age standard of jurisprudence and a similar level of power and lack of accountability for the wealthy.

  23. 23
    Matt says:

    here’s a handy timeline of the struggle to end child labor you may want to consider. It begins in 1832 and ends in 1938.

    I beg to differ. Given Teh Newt’s prognostications on making poor kids into janitors, I suspect that it’s a struggle we’ll have to pick up again if we don’t want to wind up re-living the Gilded Age…

  24. 24
    Mnemosyne says:


    The one thing that may save us is that PPACA pits large corporations against Republican ideology, and it’s not clear to me that Roberts cares more about ideology than he does about corporate profits. He could very well come down on the side of corporate profits, which would mean leaving PPACA in place.

    (And it’s not just the profits of insurance companies — keeping PPACA will help huge corporations that provide health insurance for their employees keep their costs down and thus allow them to put more of that money into profits. That could be the tipping point for Roberts.)

  25. 25
    kay says:


    It’s not just Newt. There are serious libertarian and conservative legal theorists who say federal child labor laws were and are uneccesary.

    States and markets would have fixed this problem, but for liberal meddlers and union bosses. Really.

    It’s almost fashionable on the Right, IMO, ’cause
    it’s cool and edgy and contrarian.

  26. 26
    p.a. says:

    @Mnemosyne: I certainly hope you’re right- the setup is certainly a big wet kiss for the insuance industry and a wonderful chance for large corporations to dump their employee health plans. But I’m afraid you are overthinking this; it’s about Federalist Society ideology and fucking over liberals and the ninety-whatever percent. If ACA survives to full implementation and beyond it should kill the Republiconservative brand for a generation.

  27. 27
    calliope jane says:

    Comforting, strangely. And a wee bit depressing, to see that we keep fighting the exact same arguments over and over again. And really hating Nixon, yet again, for subjecting us to Rehnquist.

    And, okay, I finally reached frightening. J Stevens wasn’t kidding when he didn’t think Brown v. Board of Ed would be decided similarly today.

    Thanks for linking to this; more tools in my arsenal when I talk to people about why striking this down would be so radical :)

  28. 28

    On the other end of the spectrum there was also that horrid decision by the Supreme Court granting the state the authority to forcibly sterilize people it deemed unfit to reproduce. History hasn’t looked kindly on that decision either. But there you have it.

    SCOTUS has a long tradition of really awful decisions, so I harbor no delusions that it won’t do so this time as well.

  29. 29
    Bob says:

    Thanks for posting that.

  30. 30
    mainmati says:

    @Baud: Whatever that means. How about DKDKGITOYMVNCDHDEK?

  31. 31
    Some Guy says:


    It Is Okay If You’re A Republican

    Might want to check the site lexicon you stupid fuck.

  32. 32
    TenguPhule says:

    It can’t be bargained with. It can’t be reasoned with. It doesn’t feel pity, or remorse, or fear. And it absolutely will not stop, ever, until you are dead.

    So the solution is to stick dynamite in their stomaches and then crush the remains under a metal press.

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