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the public welfare. In the Lottery cases the Supreme Court held constitutional the act of Congress prohibiting shipment in interstate commerce of lottery tickets and literature. In the White Slave cases the court held constitutional the act of Congress prohibiting transportation in interstate commerce of women and girls, or inducing them to travel therein, for immoral purposes.
Admitting the force of all these precedents for police regulations affecting interstate commerce, the opponents of the pending bill will seek to distinguish them by pointing out that in every previous instance the prohibition of transportation has had for its purpose the protection of the consumer, has aimed to prevent the carrying through interstate commerce of the objectionable person or thing to the place or the person where its harmful effects are to be accomplished. Whereas in the case of the pending legislation the prohibition is aimed not at the protection of the consumer but at the protection of the producer, not the community which uses the products of the labor of children but the community in which such children reside.
The fact that much of our previous legislation under the commerce clause has been confined to protection of commerce for the consumer is merely accidental. Even the pending legislation may have the ultimate effect of protecting the consumer. The amount of benefit of protection to the consumer is immaterial; the very fact that there is any such benefit or protection is sufficient. The prohibition of transportation in interstate commerce of the products of child labor may well be expected to improve the quality of the goods sold in interstate commerce. It is reasonable to presume-at least the courts can not override a determination by Congress that it is reasonable to presume--that goods manufactured by persons of more mature age will be of higher quality and more substantial value than if manufactured by children under fourteen. If Congress believes that the prohibition of transportation of the products of child labor will tend to improve the quality of articles sold in interstate commerce as well as to protect the health, morals, and welfare of the public, surely this is not such a culpable abuse of the congressional discretion as to warrant the court's setting aside of the congressional action.
A bill introduced in the present Congress by Congressman Adamson, chairman of the House Committee on Interstate Commerce, illustrates the relation of this kind of regulation of commerce to the protection of the consumer. Congressman Adam.son's bill prohibits shipment in interstate commerce for purposes of slaughter of bull calves less than 2 years old or of heifers less than 7 years old. Obviously this is not a health measure. These ages have no relation to the value of the meat as food. The only relation of this legislation to the protection of the consumer is that it protects the ultimate supply: "It protects the ultimate supply of bulls and heifers; while the pending child labor bill protects the ultimate supply of men and women.
The distinction between protecticn to consumer and producer is founded upon the narrow view of the police power which would make it depend upon, not the benefit to the general public, but the benefit of individuals, resulting from such legislaticn. This is an erroneous view of the pɔwer. Prohibition of transportation of lottery tickets was upheld by the Supreme Court, not on the ground of the benefit done to the individual who might be affected to his detriment by the purchase of lottery tickets, but on the ground that the public welfare is benefited to the extent that these inindividuals are protected agiinst the temptation to lottery gambling. In the same manner legislation limiing hours of labor has been sustained under the police power, not because of the benefit accruing to the individuals whose effort is affected, but because of the benefit derived by the general public from a decrease in the burdensome tcil of a large body of its citizens. The important p:int is that no such legislation would be supported under the police power because a hundred or a hundred thousand individuals were to be protected from some harmful consequence if that harmful consequence did not involve detriment to the public welfare. It is the public welfare, not the welfare of a large number of individuals, which justifies the legislation. Now, if this be true it matters not a bit whether the legislation affects persons to whom goods are carried or persons from whom those goods are carried, provided only that in either case the carriage is incidental to the continuance or the furtherance of conditions which are to the detriment of the public welfare. Take for example the white slave legislation. It is true it prɔhibits transportation which will protect the morals of individuals who might be affected after transportation; but it is not in the interest of these individuals that such legislation is enacted and upheld. The real justification for such legislation is the establishment of a high standard of morals and the maintenance of that standard by the prevention of a continuance of such transportation.
It is idle to talk about such legislation as aimed to protect the consumer. It is idle to attempt to distinguish it from legislation aimed to protect children from exploitation by greedy employers. The simple fact is that in both instances the legislation is justifiable, if at all, in the interest of developing and sustaining ideals of public
morality and standards of public health and welfare. The prohibition is aimed at the use of interstate commerce to further practices which violate those higher ideals, the realization of which is sought by the community in its law.
What essential difference is there between legislation protecting a few individuals from the harm which may follow their transportation from one State to another when that harm will be detrimental to the public morals, and legislation which will prevent the employment of children of tender years when such employment will be detrimental to the public health and welfare? What is there in the fact that in one case the public welfare is affected by practices which follow transportation and in the other cace is affected by conditions which precede transportation, which would justify holding the one prohibition a reasonable exercise of the police power in the public interest and the other an arbitrary exercise of the commerce power?
The argument for the disiinction between the consumer and the producer as a test of the constitu ionality of congressional police legislation under the commerce clause is not founded on any decision or any language of the Supreme Court. Although the lottery, the pure-food, and the white-slave acts may, as a matter of fact, operate to prevent evil condi ions after interstate transportation, the cases holding them constitutional were not decided on any principle or theory either expressly or impliedly so limited. On the contrary, these cases establish a principle which is equally applicable to conditions arising before or after transportation, namely, that Congress for the purpose of protecting the public health, morals, and welfare may regulate interstate commerce to the extent of prohibiting transportation of specified persons or things. In short, the regulations of interstate commerce, as was said in Hoke v. United States (227 U. S., 398, 323), “may have the quality of police legislation.". In that case it is also said: “It may be that Congress could not prohibit the manufacture of the article in a State, it may be that Congress could not prohibit in all of its conditions its sale within a State, but Congress may prohibit its transportation between the States and by that means defeat the motives and evils of the manufacture.” To “defeat the motives and evils of the manufacture” is the very purpose of the pending bill. The evils of the manufacture, namely, the labor of very young children, can be defeated by Congress by prohibi inginterstate transportation of the product of that labor. In other words, the use in manufacturing of methods which are injurious to the health, morals, and welfare of the people justifies Congress in prohibiting interstate transportation of the ar.icle manufactured in an effort to prevent such evil methods or condi'ions. It means that evil conditions will not be permitted to thrive by the unrestricted use of the channels of interstate commerce.
Congress, it must be remembered, has no direct regulative control over either the mode of consumption or method of production. The prohibition of transportation of lottery tickets, adulterated or misbranded food and drugs, and of women, was based not on a desire to protect or advance inserstate commerce itself, nor was it intended to protect particular individuals from particular harm, but as expressly stated by the Supreme Court, it was an exercise of the commerce power for the protection and advancement of the health, morals, and welfare of the country. If it be true as declared in the Hoke case that the power over commerce conferred on the Nation may be exercised "to promote the general welfare, material and moral, "what possible justification can there be for placing the consumer in a peculiar class and granting him the privilege of police protection from the National Government, while denying that protection to the unfortunate producer? It is submitted that from the cases when the regulation of commerce is not for the protection or advancement of that commerce itself (as in the case of transportation of explosive or combustible materials) the only test of constitutionality of the prohibition is this: Is the regulation reasonably designed for the protection of the health, morals, safety, or general welfare of the public? "If the law in question survives that test it is within the constitutional power of Congress and it matters not whether the regulation is in the interest of producer or consumer. In a recent unpublished article Prof. W. W. Willoughby, of Johns Hopkins University, one of the leading authorities on the constitutional law of this country, thus expresses his opinion of the soundness of the suggested distinction:
This dis:inction between conditions of production and purposes or methods of use, of commodities, though a real one, will probably not be held controlling. In neither case has Congress a direct regulative power-over neither the conditions of production nor the mode or use of consumption. If, therefore, in either case the prohibition can be construed to be, in fact, a regulation of interstate or of foreign commerce, neither the ultimate effect nor the legislative intent embodied in the law may be inquired into by the courts. In result, then, it is to be admitted that the lottery case is authority for the doctrine that interstate carriers may be prohibited from carrying, or shippers or manufar turers from sending, from State to State, and to foreign countries, commodities produced under conditions so objectionable as to be subject to control
as to their manufacture by the States under an exercise of their police power or of a character designed or appropriate for use which might similarly be forbidden by law.”
If Congress passes the Keating-Owen bill its very enactment will constitute a Congressional declaration that child labor is a national nuisance, that its evil effects on the public health and welfare can not be effectively prevented by individual State action so long as one State refuses to enact the necessary legislation, and that Congressional regulation under the power to regulate interstate commerce is demanded in the interest of the public morals, health, and welfare. What can the supreme court say to such a declaration? Would that court undertake to refute it? And without refutation would it not entirely justify a regulation of commerce to prevent the evils?
Summarizing the previous decisions Mr. Justice McKenna in the Hoke case said:
“Surely if the facility of interstate transportation can be taken away from the demoralization of lotteries, the debasement of obscene literature, the contagion of diseased cattle or persons, the impurity of food and drugs, the like facility can be taken away from the systematic enticement to and the enslaving in prostitution and debauchery of women.
And to this we may add that if for these purposes the facility of interstate commerce can be taken away, then it can likewise be taken away from the exploitation of children of tender years, to the detriment our future citizenship.
It may be objected that the case of Adair v. United States (208 U. S., 161 (1907]) is authority against the constitutionality of the proposed legislation. In the Adair case the Supreme Court held unconstitutional an act of Congress prohibiting certain corporations engaged in interstate commerce from discriminating against merr bers of trades-unions in the employment or discharge of men. The basis of this decision was that the act constituted a deprivation of the liberty of contract without due process of law. The court discussed in great detail the limitations upon congressional control over interstate commerce imposed by the fifth amendment and concluded that the regulation in this act violated the due process cleuse. That this conclusion is justified and proper is declared by the same court in Coppage v. Kansas (236 U.S., 1 (19141), where a similar statute of the State of Kansas was held to be a de privation of the liberty to contract without due process of law. In this case the court said (p. 21) “The decision in the Adair case is in accord with the almost unbroken current of authorities in the State courts. * It is not too much to say that such laws have by common consent been treated as unconstitutional.” For decisions of State courts holding similar statutes not within the scope of State police power see note, volume 52, Lawyers United States Supreme Court Report, page 436.
Mr. Justice Harlan, in the course of the opinion in the Adair case, said that such a regulation of the contract of employment was not a regulation of interstate commerce, as there was no “possible legal or logical connection * * between an employee's membership in a labor organization and the carrying on of interstate commerce. because the relation can not have, in itself and in the eye of the law, any hearing upon the commerce with which the employee is connected by his labor and services.'
A careful analysis of the Adair case shows that this statement is not the real basis of the court's decision. The decision in the cåse was based solely on the fact that the act of Congress constituted a deprivation of the liberty of contract without due process of law. In the subsequent case of Coppage v. Kansas, where a State statute identical in effect with that involved in the Adair case was declared unconstitutional, the court, discussing the decision in the Adair case, said:
“The court held that portion of the act upon which the conviction rested to be an invasion of the personal liberty as well as of the right of property guaranteed by the fifth amendment."
Many cases in the Federal courts interpreting the effect of the Adair decision put upon it the sime construction as that just quoted from the Coppage case. (NcLean v. Arkans.8, 211 U.S., 545 (1909): Chicago, Burlington & Quincy
R. R. Co. v. NcGuire, 219 U. S., 549 ; Goldfield Consol. Mines Co. v. Goldfield, M. U. No. 220. 159 Fed., 500 (1907); Hitchman Coal & Coke Co. v. Mitchel, 172 Fed., 963 [1909); Zikos v. Ore R. & Navigation Co., 179 Fed., 893 ; Irving v. Joint Dist. Council U. B. of Carpenters, 180 Fed., 896 .)
But even if this statement of Mr. Justice Harlan in the Adair case be given authoritative effect as a precedent, it must be remembered that in this portion of his opinion the learned judge was dealing not with the limiting effect of the fifth amendment on the power of the courts to interfere with personal or property rights, but with the question what is interstate commerce. In other words, what are the limits of the Federal jurisdiction as distinguished from the State jurisdiction over commerce? That portion of the opinion in which the statement just quoted is contained, is introduced by the following language: “Let us inquire what is commerce, the power to regulate which is given to Congress.” The general language made use of by the
learned justice in answering this question is of importance if at all not in a case involving the restrictive effect on the exercise by Congress of a power over interstate coinmerce which is clearly within the Federal jurisdiction, but only in cases like the employer's liability case where the question is what is interstate commerce and where does the Federal juris liction over commerce end and the State jurisdiction begin. Nr. Justice Harlan's general statement is to the effect that the Federal jurisdiction does not run to the point of the making or the terminating of a contract of employment between an interstate carrier and its employee. Even on this point his statement must be regarded as having been qualified by the subsequent cases. But in any event, Mr. Justice Harlan's statement has relation not to the effect of the due process clause in the fifth amendment on an undoubted exercise by Congress of its power over interstate commerce, but to the relationship between the powers of the Nation and the State under the Federal Constitution. This question has been thoroughly discussed under subdivision 4 of this b:if.
It is important, however, to note that in the proposed child-labor legislation Congress is not attempting to regulate contracts of employment by virture of its control over the instrumentalities or agencies of interstate commerce. It does not seek to extend its jurisidiction by directly regulating contracts of employment as was done in the Adair case. So far as the proposed legislation is concerned the employer is free to conduct his business with or without child labor. All that Congress dces if it enacts the child-labor bill is to say to the employer that if he chooses to employ children he shall not have the facilities of interstate commerce for the distribution and sale of his product. This is not a regulation of conditions of employment. It is a regulation of the subject matter of interstate commerce with the incidental effect on the conditions of employment. But as has been said, the fact that it has such incidental effect is not material, provided it be established that it is a regulation of interstate commerce.
It was argued in the first employers' liability case (Howard v. Illinois R. Co., 207 U. S., 463. 502) that one who engages in interstate commerce thereby subjects all of his business concerns, including his intrastate business, to the regulating power of Congress. This argument was refuted by Mr. Justice White, now Chief Justice, in the sweeping and vigorous language which such a broad claim of congressional power might be expected to inssire. He says:
"To state the proposition is to refute it. It assumes that because one engages in interstate commerce he thereby endows Congress with power not delegated to it by the Constitution; in other words, with the right to legislate concerning matters of purely State concern. It rests upon the conception that the Constitution destroved that freedom of commerce which it was its purpose to preserve, since it treats the right to engage in interstate commerce as a privilege which can not be availed of excepti pon such conditions as Congress may prescribe, even although the conditions would be otherwise beyond the power of Congress. It is apparent that if the contention were we'l founded it would extend the power of Congress to every conceivable subject, however inherently local, would obliterate all the limitations of power imposed by the Constitution, and would destroy the authority of the State as to all conceivable matters which from the beginning have been, and must continue to be, under their control as long as the Constitution endures."
This is the language usually quoted by opponents fo the child labor and similar legislation. It must be remembered, however, that Mr. Justice White is here discussing the question, What is interstate commerce? and is considering the relationship between the National Government and the States. The legislation under consideration and the arguments pertaining thereto involved congressional regulation of the instrumentalities or agencies of interstate commerce and legislative power to directly control those agencies. The question involved was identical to that raised by the language in the Adair case which has just been discussed. The court declares that direct control of intrastate commerce by Congress is an unconstitutional assumption of power. The rebuff to the exponents of any other doctrine was well merited.
The constitutionality of Federal child-labor legislation is not based on any such broad assumption of congressional po xer. The proposed legislation does not depend on the doctrine that one who engages in interstate commerce thereby subjects his entire business to the regulation of commerce. Rather it depends on the oft-applied principle that the power to regulate the subject matter of commerce iacludes the power to pass police regulations to promote the health, safety, welfare, and morals of the country. If Congress were proposing to forbid the employment of children in the mi ing and manufacturing establishments of the country the language of (hief Justice White in the above case would be applicable, but as Congress is only excluding certain articles from the channels of that commerce over which it has undoubted control, this language is of no import. As stated above in the discussion of the Adair
case, the fact that a regulation of interstate commerce in products of child labor may have the incidental effect of discouraging the employment of children in the miring and manufacturing establishments of the States does not affect the question of its constitutionality. As long as Congress is regulating interstate commerce the only limitation upon such regulation is the “due process clause" and not the "interstate commerce clause."
To those who fear to take the step proposed in the Federal child-labor bill because of its possible unconstitutionality, it should be pointed out that no one knows the limits of the power of Congress over interstate commerce. The Supreme Court has from time to time extended the limits of that power beyond preconceived notions of its limitations. If this legislation is desirable, if there exist evils detrimental to the public welfare which it will tend to correct, its enactment by Congress certainly ought not to be delayed merely because of the possibility of its being held unconstitutional by the Supreme Court. No one can say that it is unconstitutional. And if the mere fear of an adverse decision by the Supreme Court were to prevent the passage of legislation by Congress there would be no development of our constitutional law. Who could have said, prior to the lottery cases, that the policy of the lottery legislation would be upheld by the Supreme Court of the United States? Who could have said, prior to the Hoke case, that the antiwhite-slave legislation would be held constitutional? Yet if these acts had not been passed merely because there was a possibility that the Supreme Court would declare them unconstitutional, individual States might still pass drastic laws and yet be helpless to prevent the flourishing of lotteries and the white-slave trade.
This brief began by asking the question, Can Congress use its power to regulate interstate commerce to stamp out child labor in mines and factories? It concluded with the answer, first, Yes; in the same manner that Congress can use the same power to stamp out lotteries, impure foods, prostitution, etc.; and, second, Yes; to the extent that Congress can close the channels of interstate commerce to the products of child labor and thereby prevent the exploiters of child labor finding an interstate market for its products.
The argument in support of these conclusions can not be better summed up than by repeating the language of Mr. Justice Harlan in the lottery cases, changed only by substituting the underscored words 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 (p. 356).
As a State may, for the purpose of guarding the morals of its own people, forbid all child labor within its limits, so Congress, for the purpose of guarding the people of the United States against the 'widespread pestilence of child labor' and to protect that 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 Čongress alone has the power to occupy, by legislation, the whole field of interstate commerce (p. 357). * 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 productş, 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 dev'sed 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” (p. 358).
The ACTING CHAIRMAN. Is there anyone else to be heard ?
STATEMENT OF MR. W. H. SWIFT, OF GREENSBORO, N. C.
Mr. SWIFT. Mr. Chairman, I am secretary of the North Carolina Child Labor Committee and of the South Carolina committee, and I am in the employment of the National Child Labor Committee, and have spent three years in studying and investigating this question.