The familiar Twenty-Seven Amendments are not the only ones that have been passed by Congress. Six amendments, already approved by Congress, are floating around in the ether awaiting ratification by the sufficient number of states.1 One of the six stands out among the rest, though, the Child Labor Amendment, or CLA. Proposed in 1924, the CLA sought to grant Congress the “power to limited, regulate, and prohibit the labor of persons under eighteen years of age.” After a long-fought battle for the sympathies of the Supreme Court, Congress was allowed to assume this authority under its power to regulate commerce as declared in United States v. Darby (1941). While the CLA was never ratified, the Amendment has been informally adopted. No other unratified amendment can say the same.
The story of the CLA began long before its drafting. Child labor reform in general became a point of emphasis in the late nineteenth century in response to the Industrial Revolution and the end of chattel slavery in the United States. By outlawing slavery, the Thirteenth Amendment increased the size of the free labor market. This coincided with industrialization and therefore an increased demand for workers. Industrialization also brought with it increased danger.2The reality that the limbs of poor children were being chewed up by enormous machines on factory floors was unconscionable. Additionally, Progressive reformers had been lobbying for compulsory schooling until the age of sixteen. The employment of children actively stood in the way of the vision for an educated United States.3 The stage was set for an effort to abolish child labor in the United States.
From 1907–1922, the United States saw three major attempts at Federal child labor legislation. The first was never signed into law. The second, the Keating-Owen Act which prohibited interstate transportation of products from factories that used child labor, was struck down by the Supreme Court in Hammer v. Dagenhart (1918). In Hammer the Court ruled five to four that by prohibiting the interstate transportation, Congress had exceeded the power granted by the Commerce Clause.4 The third was passed in order to evade the Court’s constitutional reasoning for striking down the Act by instead imposing a tax under Congress’s taxing power, but it too was enjoined in Bailey v. Drexel Furniture Co. (1922). Writing for the majority in Bailey, Chief Justice and former president William Howard Taft contended that the tax had a “prohibitory and regulatory effect” on production within a state-a domain Congress had no power over as determined in Hammer.5 The repeated defeat of reformers by the Court forced them to pursue alternative avenues of change.
The answer was a formal child labor amendment. Drafted by the National Child Labor Committee (NCLC), the CLA quickly passed Congress in 1924. While it was never ratified, it did experience two waves of ratification momentum. The first, in the 1920s, failed on account of the outsized influence of manufacturer interest, legal groups, and the Red Scare. It was then revived in the 1930s due to the economic circumstances of the Great Depression. At this time, the rhetoric for the CLA shifted from child welfare to the concern of cheap child labor taking away jobs from working-class men. Support for the CLA, though, faltered following the success of the National Industrial Recovery Act (NIRA) at federally regulating child labor. However, the period of federal regulation was short-lived, as the Supreme Court struck down NIRA in A. L. A. Schechter Poultry Corporation v. United States (1935). This created an environment ripe for another resurgence of the CLA, but the Supreme Court instead evolved its understanding of the commerce power which then allowed for the federal regulation of child labor rendering the CLA obsolete in 1937.
Proposed Child Labor Amendments
The CLA, though, was not the only proposed child labor amendment in Congress. In the 1930s, the proposals were tied to the success of federal child labor legislation at the time and the understanding of the legal status of the CLA at the time. During the 1930s, opponents to the CLA argued that it could not continue to be ratified due to almost a decade having passed since its initial passage. Others were proposed due to state ratifications stagnating in the mid 1930s. Notably, Senator Arthur Vandenberg of Michigan, introduced a revised version of the CLA that would be sent to state conventions for ratification rather than state legislatures in the same manner as the Twenty-First Amendment which faced the same issue of popular support but opposition in state legislatures. The hope was that state conventions would better represent the collective will of the people based on this single issue. However, the 1937 change in the understanding of Congress&sdquo;s commerce power by the Court rendered it, along with the CLA obsolete.
While its obsolescence was only a hypothetical in 1937, it was tested with the passage of the Fair Labor Standards Act (FLSA) in 1938. The final version of the now FLSA forbade the interstate shipment of goods that were produced using “oppressive child labor.”7 The FLSA did not go unchallenged, though. Most notable of these challenges took the eventual form of United States v. Darby (1941) which confirmed the presumed view of the Court on the child labor question. Writing for the unanimous Court, Justice Harlan Fiske Stone declared that “While manufacture is not of itself interstate commerce the shipment of manufactured goods interstate is such commerce and the prohibition of such shipment by Congress is indubitably a regulation of the commerce.”8 The FLSA was upheld and along with it the CLA was, in effect, ratified. Ultimately, the CLA contributed to the creation of a new constitutional order. The new order consists of increased congressional power based on an updated understanding of the Commerce Clause by the Supreme Court. Additionally, the CLA reinforced the Supreme Court’s position in the new order as final arbiter of constitutional interpretation on almost all questions.9
The story of child labor in America did not end with Darby. The FLSA included an exemption for agricultural work. Seventy percent of child workers were unprotected by the legislation.10 It was not until an amendment to the FLSA was signed into law in 1966 that children were restricted from working in agriculture outside of school hours.11 None of these measures altogether abolished child labor.12 A century after the first national campaign to end child labor, the widespread employment of migrant children across the United States is on the rise.13