June 3: Child Labor and the Supreme Court

Louis Brandeis was part of the dissenting minority of four justices in the case of Hammer v. Dagenhart on this date in 1918, in which the majority overturned the Keating-Owen Act of 1916, which had prohibited interstate commerce involving merchandise made by children under the age of 14 or between 14-16 who were made to work more than eight hours a day or more than six days a week. The dissent was written by Justice Oliver Wendell Holmes, Jr., who took issue with the Court’s allowing Congress to control liquor, prostitution, and other products and services considered “immoral” while refusing Congress the right to regulate child labor nationwide; that is, “to say that it is permissible as against strong drink but not as against the product of ruined lives.” Justice Holmes also commented: “If there is any matter upon which civilized countries have agreed, it is the evil of premature and excessive child labor.” Congress soon passed a second child labor law, asserting federal power on the basis of taxation rather than the regulation of interstate commerce — and again the Court struck it down, 5-4. (Holmes’ dissent, however, would provide the basis by which the Court would, in 1941, overturn its 1918 decision.) Brandeis, who in 1918 was less than two years on the Supreme Court, had a decade earlier argued before the Justices in Muller v. Oregon, in defense of an Oregon law establishing a ten-hour workday for women. His argument was so compelling that the Justices didn’t interrupt him once — unusual for the Supreme Court — and upheld the law unanimously.

“We learned long ago that liberty could be preserved only by limiting in some way the freedom of action of individuals; that otherwise liberty would necessarily yield to absolutism; and in the same way we have learned that unless there be regulation of competition, its excesses will lead to the destruction of competition, and monopoly will take its place.”—Louis Brandeis