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which exist at the time the State legislatures pass the legislation. The test is reasonableness and nothing more.
That being the general effect of the due-process clause in the fifth amendment, the next question is, and this is the vital question in this case: Is a regulation of interstate commerce which prohibits the shipment of the products of child labor in interstate commerce a reasonable regulation of the individual's right to find an interstate market for his goods?
We know that the Supreme Court of the United States has upheld as reasonable, under the fourteenth amendment, the child-labor laws of the States. We know, in other words, that the Supreme Court of the United States has said that a regulation of the right of the child to work and a regulation of the right of the employer to have children work under a certain age is constitutional. We know that State legislation setting up standards of child labor similar to those in this bill is constitutional; that it does not deprive anybody of rights of property or of liberty without due process. That means that there are conditions existing in the community which justify this interference with personal liberty in private property. The right of the child to work is subject to this right of the State government in its jurisdiction and the Federal Government within its jurisdiction to say that you shall not work if your work involves detriment to the public health, safety, or general welfare.
In the Coppage case, for example, which was referred to yesterday, where the Supreme Court of the United States held unconstitutional the Kansas statute prohibiting the discharges of men because they belonged to trade-unions, the court referred to the previous decision in the Adair case, holding a similar act of Congress unconstitutional, and it said that the reason for these decisions was that such regulations had been generally held throughout the country as unwarrantable, unreasonable interferences with rights of liberty and property. In other words, they referred to the fact that State statutes to the same effect had been generally considered as arbitrary and unreasonable, and on that ground they justified their decision that such statutes were unconstitutional.
The fundamental reason underlying those decisions was that there had been no conditions shown in the community, no evil conditions connected with the public safety, the public health, or the public welfare which justified that kind of regulation. It does not mean that in the future we may not have similar statutes held constitutional. Take, for example, the workman's compensation act passed in New York some years ago. When it first came before the court of appeals of New York State, it was held unconstitutional as an unreasonable deprivation of property without due process of law. It was so held under the State constitution which contains a due process clause. We amended the State constitution and expressly authorized the legislature to enact a workman's compensation act. We could not amend the fourteenth amendment. The fourteenth amendment still required the States not to deprive any individual of property without due process of law, and when our second workman's compensation act came before the court of appeals, and it was contended that if the first act had been unconstitutional as a deprivation of property without due process under the State constitution, then the second act was unconstitutional, as a deprivation of property
without due process contrary to the fourteenth amendment. The question was precisely the same and the court of appeals simply departed from its former decision on the ground that it felt impressed with the fact that it had been established that there were conditions which justified this interference with private property, this regulation of private property, in the interest of the public good.
Senator BRANDEGEE. But they would not have held that unless you had amended the constitution specifically authorizing the new reso ution ?
Prof. PARKINSON. But, Senator, the second case arose under the fourteenth amendment to the Federal Constitution.
Senator BRANDEGEE. But the State constitution had been amended?
Prof. PARKINSON. The Federal Constitution had not been amended. The first case was decided under the due process clause of the State constitution and the second case was decided under the due process clause of the Federal Constitution.
Senator BRANDEGEE. Yes; I understand.
Prof. PARKINSON. The question, what is due process, remained precisely the same as it had been in the first place.
So I say, of all these cases the question is one of reasonableness, reasonable regulation in the interest of public welfare.
After all, the principal point involved in the constitutionality of the pending bill is this: Are the Lottery case and the White Slave case precedents supporting the constitutionality of this child-labor bill? If they are we do not need to go any further.
In the Lottery case the Supreme Court upheld a prohibition of the shipment of lottery tickets and lottery literature in the interest of protecting the public morals and the public welfare.
In the Hoke case the Supreme Court upheld the act of Congress prohibiting the transportation of women in interstate commerce for immoral purposes, and they upheld it on the ground that it was a prohibition of interstate commerce in the interest of public welfare.
The only suggestion that I have ever heard which would tend to indicate that these cases are not absolute precedents in support of the constitutionality of this proposed legislation was that advanced by Gov. Kitchin yesterday, and which is generally known and referred to as the distinction between protection of the consumer and protection of the producer. If that Lottery case and that White Slave case are not to be precedents in support of the constitutionality of this child-labor bill, it is because of that alleged distinction between protection of the consumer and protection of the producer. It is true that in the Lottery case Congress was protecting the consumer at the end of the interstate journey by preventing the lottery tickets reaching him. It is true in this case that Congress would be protecting small children against employment in the production of goods before they started on the interstate journey.
That, gentlemen, is the crux of this question. Is there any difference between a regulation for the protection of the consumer and a regulation for the protection of the producer?
Think for a moment what that lottery case really means. Congress prohibited transportation in interstate commerce of lottery literature and lottery tickets, and the Supreme Court upheld it. Do you think for a moment that the Supreme Court in upholding that lottery act
was influenced by the fact that it protected a few individuals who might have purchased lottery tickets to their moral detriment at the end of a journey in interstate commerce? Do you think that the Supreme Court was influenced by the fact that a few individuals might become gamblers or indulge their gambling instincts? Do you suppose the Supreme Court was trying merely to protect those individuals against themselves, or against the temptation to gamble ? Not at all. The Supreme Court upheld that legislation because it established a standard of morality, an ideal of public welfare which these gambling transactions violated. The Supreme Court upheld that legislation, not for the protection of the individuals who bought the lottery tickets, but for the protection of the public welfare and the public morals. It was the relationship of the effect of those lottery tickets on the individuals' morals and the public morals that justified Congress in enacting that legislation.
That is what government exists for, to establish high ideals of morals, high standards for the public welfare and to compel obedience to them, and this legislation was upheld because it prohibited violations by individuals of those established standards.
Take the decision in the Hoke case. Do you think for a moment that the Supreme Court of the United States upheld that prohibition of interstate commerce in the interest of protecting the few individuals who might otherwise be affected by transactions at the end of a journey? Government never intervened merely for the protection of those few individuals. Again, it was a standard of public morals and of public welfare for the establishment and maintenance of which Congress exercised its great powers; and from this point of view what does it matter whether the conditions which violate a standard of public welfare, of public health, of public safety, or of public morals which Congress says should be maintained—what does it matter whether those violations come at the beginning of a journey or at its end? Congress has this power under the commerce clause to use for the public good, and if it finds conditions in the country which it believes ought to be regulated, which it believes call for the establishment of a standard and its protection, it matters not whether the injury may affect a group of persons here or a group of persons there, the important question is, “Do the transactions or conditions here or there affect the public safety, the public health, the public morals, or the public welfare?” And if they do, Congress has the power to intervene to prevent them.
I want to read a quotation from the lottery case, in which I have taken the liberty of inserting the words “child labor or its products" in place of “lotteries.” Otherwise the quotation is just as it appears in the opinion of Mr. Justice Harlan, except that the italicized words are substituted for words referring to lotteries.
If a State, when considering legislation for the suppression of child labor within its own limits, may properly take into view the evils that inhere in mining or manufacturing 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 the products of such labor from one State to another. * * * As a State may, for the purpose of guarding the morals of its own people, forbid all child labor within its limits, so ('ongress, for the purpose of guarding the people of the United States against the widespread pestilence of child labor and to protect the commerce which concerns all the States, may prohibit the carrying of the products of such labor from one State to another. * * * We should hesitate long before adjudging that an evil of such appalling character, carried on through interstate commerce, can not
be met and crushed by the only power competent to that end. We say competent to that end, because Congress alone has the power to occupy, by legislation, the whole field of interstate commerce. * * * If the carrying of the products of child labor from one State to another be interstate commerce, and if Congress is of opinion that an effective regulation for the suppression of the sale of such products carried on through such commerce is to make it a criminal offense to cause such products to be shipped from one State to another, we know of no authority in the courts to hold that the means thus devised are not appropriate and necessary to protect the country at large against a species of interstate commerce
which has grown into disrepute and has become offensive to the entire people of the Nation.
That is the language used by the Supreme Court in upholding the lottery act. I have substituted for "lotteries," "child labor." I have made no other change, and if child labor conditions in this country have become such that though the States interpose to prohibit such labor, this prohibition is ineffective to suppress child labor because users of child labor find a market for their products in interstate commerce, this statement of the Supreme Court applies as well to child labor as it does to lotteries. The States could intervene to prohibit lotteries, but not effectively. States can intervene to prohibit child labor but not effectively. The only power competent to that end, as Mr. Justice Harlan says, is the Federal Government.
Summing up, then, we believe that this power of Congress over commerce includes prohibition; that it includes prohibition in the interest of the general welfare as well as in the interest of the instrumentalities of commerce; that this power is not arbitrary but must be exercised consistently with the fifth amendment, and must not constitute a deprivation of life, liberty, or property without due process of law, but that it may be exercised reasonably to regulate conditions for the protection of the public health, morals, safety, and welfare; and that it does not make any difference whether the individuals who are primarily affected by the regulation bappen to be at the one end of the journey in interstate commerce or at the other.
I thank you, gentlemen.
The ACTING CHAIRMAN. Your proposition, in brief, is that it is as detrimental to public morals to produce and sell a lottery ticket as it is to buy and use it.
Prof. PARKINSON. Not quite, Senator, but that the buying and the using by some individuals in the community is a violation of the standard of public morals and public welfare which it is desirable for the Government to maintain. It is not a question whether the one act or the other is more or less immoral, but it is the relationship between the good of the individual and the good of the community, and it is the fact that there is a good of the community at issue which justifies the regulation. In other words, the regulation would never be upheld, whether it was made by the Federal Government or made by the State government, unless it could be shown that the regulation in the interest of some individuals was intimately connected with the good of the general public.
Senator BRANDEGEE. In the lottery case the whole system and its paraphernalia were conceded by everybody to be immoral, the things that were prohibited from transportation were a part of the paraphernalia of the business, and the advertisement of an admittedly illegal business and immoral, although it had been legalized in the States where it existed. Now the thing prohibited by Congress
in this bill is, per se, a perfectly innocuous, legitimate and desirable article. Do you see no difference between those two cases?
Prof. PARKINSON. Lottery tickets were not always regarded as immoral.
Senator BRANDEGEE. No, but at the time of the decision, I mean.
Prof. PARKINSON. I have no doubt there were a number of people then who thought them not immoral.
Senator BRANDEGEE.· Assuming that there had not been a consensus of opinion as to the immorality and the court found it was an immoral, and as you say a gambling device, and the whole thing tending to corrupt public morals. Now, child labor of itself is not immoral nor corrupting unless the child is working at too young a period, and it can not be branded as an infamy that a child shall try to earn its living. The whole institution was not immoral. There is nothing immoral about the transportation of cotton, certainly. As I say in the lottery case, the lottery devices themselves were prohibited from being sent to one State from the other. In this case the child labor is not attempted to be regulated, but the product of the labor is barred from commerce and the product of the labor is a perfectly innocent article, and is only a parcel of the labor, if it is a complicated article manufactured in a mill where only a certain number of children are employed. Do you think those two cases are on a perfectly parallel ground so the court would be compelled if it stands by its lottery decision, to sustain the constitutionality of this child-labor act?
Prof. PARKINSON. Senator, the lottery act prohibited the transportation in interstate commerce of the article which enabled the lottery gamblers to carry on their trade. Without that transportation they could not carry on their trade. There was nothing immoral about carrying the lottery tickets across the State line in the mails or in express cars. It was the using of an instrumentality subject to the Federal control for making effective the lottery scheme, the gambling scheme, that was withdrawn, and here we merely withdraw from the man who is producing goods with the labor of young children the instrumentalities under the Federal control by which he seeks to find a market. The lottery gambler when he shipped his tickets in interstate commerce was seeking his market, and that is what the Federal Government withdrew from him, and that is what we seek to withdraw from the user of child labor..
Senator BRANDEGEE. You see no distinction at all between the two?
Prof. PARKINSON. I see no distinction whatever between these two cases so far as the question of withdrawing the Federal instrumentality from the use of those persons who are carrying on practices which are to the detriment of the general welfare.
Now, Senator, I should like to come back to the first part of your question, which involves the question of morals. You, I think, admit that it may be immoral to employ very young children, because I noticed in your question a limitation as to age, therefore it is a matter of degree as to where the point is to be established at which evil employment becomes immoral.
Senator BRANDEGEE. You think so, but as I follow your very ingenious and entertaining argument, it occurs to me if it is practically so that under the commerce clause of the Constitution Congress can