A THE FEDERAL CHILD-LABOR LAW ANOTHER VIEW OF ITS CONSTITUTIONALITY NY consideration of the constitutionality of the federal Child-Labor Law may well begin with an admission that Congress cannot directly prohibit the employment of children in a mining or manufacturing industry within a state. However much the Knight case may have been undermined by more recent decisions, 3 its distinction between production and commerce is still effective to prevent direct congressional regulation of manufacturing and production as distinguished from sale and transportation. This admitted lack of power directly to prohibit child labor is not, however, conclusive against congressional regulation affecting the employment of children. Neither the Knight case, nor any other decision of the Supreme Court, has ever held that Congress could not, in the exercise of its power over commerce, affect the conditions under which manufacturing is carried on within a state. Notwithstanding the lack of power to regulate intrastate railroad rates, Congress may affect such rates through a regulation of interstate rates. In like manner, Congress may, and frequently does, indirectly affect conditions of manufacturing. The immunity from congressional action which is sometimes sought for manufacturing would require an amendment to the Federal Constitution declaring that under no circumstances shall an act of Congress affect conditions of production within a state. In the absence of such a negation of power, Congress may accomplish indirectly what it may not be able to do directly. There is nothing in the manufacture of goods, any more than in the other conditions and relationships involved in personal 1 Chapter 432, Acts of Congress of 1916. United States v. E. C. Knight Co. (1895) 156 U. S. 1. Addystone Pipe and Steel Co. v. United States (1899) 175 U. S. 211. Minnesota Rate Cases (1913) 230 U. S. 352, 399; Houston, East and West Texas R. Co. v. United States (Shreveport Rate Case) (1914) 234 U. S. 342. actions within a state, which excludes the possibility of indirect regulation by Congress. Congress had no power to prohibit the conduct of lotteries, but a congressional prohibition of interstate commerce in lottery tickets was upheld by the Supreme Court and had the effect of practically abolishing lotteries;' Congress had no power directly to regulate the quality of food and drugs manufactured or sold within a state, but acts of Congress prohibiting interstate commerce in adulterated or misbranded food or drugs have been upheld by the courts, and have in a large measure prevented the manufacture of impure foods and the sale of misbranded foods; Congress had no power to prohibit the use of poisonous phosphorus in the manufacture of matches, but an act of Congress placing a prohibitive tax on phosphorus matches has had the effect of driving poisonous phosphorus out of the match factories of the country,3 These and many other instances of prohibitions of interstate commerce and of regulations under the guise of taxation establish beyond all doubt the power of Congress to reach conditions and accomplish results by indirect action, which admittedly it cannot reach and accomplish by direct action. 2 The constitutionality of a prohibition of interstate commerce depends on the interpretation to be given to the commerce clause and to the Fifth Amendment to the Federal Constitution. The commerce clause determines the jurisdiction over commerce which has been delegated to Congress as distinguished from that which has been reserved to the states. The Fifth Amendment determines the extent to which the federal government in the exercise of its delegated powers is controlled by the right of the individual-not the state-to insist that the federal action shall not deprive him of life, liberty or property without due process. In determining the respective jurisdictions of the federal 1 Act of 1895, held constitutional in Champion v. Ames (1903) 188 U. S. 321. Act of June 30, 1906 (34 Stat. 768, Ch. 3915) interpreted and its penalties enforced in Hipolite Egg Co. v. United States (1911) 220 U. S. 45, and United States v. Lexington Mill and Elevator Co. (1914) 232 U. S, 399; see also Seven Cases &. United States (1916) 239 U. S. 510. Act of April 9, 1912 (37 Stat. 81). "to government and the states over commerce, we are confronted with the necessity of ascertaining, first, what is "commerce among the several states" and, second, what is included within the power" to regulate." Mr. Hull's article contains an interesting description of the extreme limits of interstate as distinguished from intrastate commerce. The cases involving this problem are interesting and might be controlling if Congress had legislated directly to prohibit the employment of children in industries carried on within a state. Then, as in the Adair case,' and the Employers' Liability Cases, the question would have been whether the conditions and relationships regulated were included within the field of "commerce among the several states." But Congress did not directly prohibit the employment of children; it simply prohibited the transportation in interstate commerce of specified goods. These goods undoubtedly are articles of commerce. They are by the Act excluded from commerce" among the several states." Can there be any doubt that the carriage of these goods from one state to another is interstate commerce, and, if it is, does it not follow that the only question under the commerce clause, raised by the ChildLabor Law, is the extent of the power to regulate? Does the power to regulate include the power to prohibit, and, if so, what are the limitations, if any, on the power to prohibit with relation, either to the nature of the persons or goods excluded from interstate commerce, or the purposes actuating such exclusion? The power of Congress to prohibit foreign commerce was recognized early in our history and has been frequently exercised. This recognition of power to prohibit foreign commerce drawn from a delegation of power "to regulate" such commerce is important when considering prohibitions of interstate commerce, because, as the Supreme Court has said, "the grant is conceived under the same terms and the two powers are undoubtedly of the same class and character and equally extensive."3 The Supreme Court has also said: 1 Adair v. United States (1907) 208 U. S. 161. 1207 U. S. 463. Bowman v. Chicago and Northwestern Ry. (1888) 125 U. S. 465, 482. "It has frequently been laid down by this court, that the power of Congress over interstate commerce is as absolute as it is over foreign commerce.' If this is true, it follows that these authorized congressional prohibitions of foreign commerce are precedents in support of congressional prohibitions of interstate commerce. This is not to say that in the exercise of its power to prohibit interstate commerce Congress may exercise the same arbitrary power of prohibition which has been sustained in the field of foreign commerce. Congress may exercise an arbitrary power of prohibition of foreign commerce, because it has been held that the individual has no right to engage in foreign commerce which will be protected under the Fifth Amendment. The individual has, however, a right to seek an interstate market, and this right Congress cannot take from him, except by due process. To hold, therefore, that prohibitions of foreign commerce are precedents in support of prohibitions of interstate commerce, does not mean that Congress may prohibit as freely in the field of interstate commerce as in the field of foreign commerce. The reason for the difference, however, is found, not in the commerce clause defining the federal power over commerce, but in the Fifth Amendment limiting the power of Congress to affect the private rights of the individual. The power of Congress to prohibit interstate commerce, while supported by the precedents establishing the right to prohibit foreign commerce, is not dependent upon them. The Supreme Court has sanctioned congressional prohibitions of the shipment or transportation in interstate commerce of lottery tickets, obscene literature and adulterated or misbranded food or drugs. It has held constitutional the Mann Act, prohibiting the transportation of women in interstate commerce for immoral purposes, and it has upheld the equivalent of prohibition of interstate transportation of intoxicating liquors. We must, 1 Crutcher v. Kentucky (1891) 141 U. S. 47, 57. See note 1, p. 539, infra. 3 Act of Congress, June 25, 1910, held constitutional in Hoke v. United States (1913) 227 U. S. 308. The Wilson Act, held constitutional in In re Rahrer (1891) 140 U. S. 545, and the Webb-Kenyon Act, interpreted in Adams Express Co. v. Kentucky (1914) 238 U. S. 190. therefore, take it as established, that the power to "regulate commerce among the states" includes, under some circumstances at least, the power to prohibit such commerce. What are the circumstances under which interstate commerce may be prohibited? This power might have been confined to the advancement of interstate commerce or the protection of its instrumentalities. The Supreme Court might have ruled that prohibitions of interstate commerce would be sustained only when they exclude dynamite, diseased cattle or other things or persons dangerous or detrimental to interstate commerce or its instrumentalities. The Supreme Court, however, has not seen fit thus to limit the power of Congress to prohibit commerce. It has sustained many prohibitions enacted, not for the protection or advancement of commerce, but solely in the interest of promoting the public health or welfare. It was this authorization of the use of congressional prohibitions of interstate commerce in specified persons or things in the interest of the betterment of conditions in the community which made possible such legislation as the Child-Labor Act. As early as 1808 it was said: "The power to regulate commerce is not to be confined to the adoption of measures exclusively beneficial to commerce itself, or tending to its advancement, but in our national system as in all modern sovereignties it is also to be considered as an instrument for other purposes of general policy and interest." While this remark was made in a case involving foreign commerce, recent cases have demonstrated that it is equally true in the field of interstate commerce that the power of Congress may be used "as an instrument for the purposes of general policy." In the Lottery Case the court said: If a state when considering legislation for the suppression of lotteries within its own limits may properly take into view the evils that inhere in the raising of money in that mode, why may not Congress, invested with the power to regulate commerce among the several states, provide that such commerce shall not be polluted by the carrying of lottery tickets from one state to another?? United States v. Williams (1808) 18 Fed. Cases 614. |