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