Reprinted from THE AMERICAN POLITICAL SCIENCE REVIEW, Vol. XIII, No. 1, February, 1919 CONSTITUTIONAL LAW IN 1917-1918. I THE CONSTITUTIONAL DECISIONS OF THE SUPREME COURT OF THE UNITED STATES IN THE OCTOBER TERM, 19171 THOMAS REED POWELL Columbia University I. INTERSTATE COMMERCE POWERS OF CONGRESS UNDER THE COMMERCE CLAUSE The federal Child Labor Law was declared unconstitutional in Hammer v. Dagenhart2 by a vote of five to four. It forbade the transportation in interstate or foreign commerce of the product of any mine or quarry "in which within thirty days prior to 1 For preceding reviews of Supreme Court decisions on constitutional questions, see American Political Science Review, (1910) IV, 483–497; (1912) VI, 513– 523; (1915) IX, 36-49; (1918) XII, 17-49, 427-457, 640-666. * (1918) 247 U. S. 251. See Thurlow M. Gordon, "The Child Labor Law Case," 32 Harvard Law Review 45; Frederick Green, "Social Justice and Interstate Commerce, 208 North American Review (September, 1918) 387; William Carey Jones, "The Child Labor Decision," 6 California Law Review 395; T. I. Parkinson, "The Federal Child Labor Decision," The Child Labor Bulletin, vol. 7, no. 2, p. 89 (August, 1918); and T. R. Powell, "The Child Labor Decision," The Nation, vol. 107, p. 730 (June 22, 1918), and "The Child Labor Law, the Tenth Amendment, and the Commerce Clause," 3 Southern Law Quarterly 175. See also editorial notes in 86 Central Law Journal 441, 17 Michigan Law Review 83, and 27 Yale Law Journal 1092. For articles on the subject written prior to the decision of the Supreme Court, see H. C. Gleick, "The Constitutionality of the Child Labor Law," 24 Case and Comment 801; Frederick Green, “The Child Labor Law and the Constitution," Illinois Law Bulletin, no. 2, p. 3; Henry Hull, "The Federal ChildLabor Law," 31 Political Science Quarterly 519; and T. I. Parkinson, "Brief for the Keating-Owen Bill," The Child Labor Bulletin, vol. 4, no. 4, pt. 2, p. 219 (February, 1916), "Constitutional Prohibitions of Interstate Commerce," 16 Columbia Law Review 367, and "The Federal Child Labor Law," 31 Political Science Quarterly 531. The majority consisted of Chief Justice White and Justices Day, Van Devanter, Pitney and McReynolds; the minority, of Justices McKenna, Holmes, Brandeis and Clarke. the time of the removal of such product therefrom children under the age of sixteen years have been employed or permitted to work," with similar prohibitions covering the products of mills and factories in which children under fourteen were employed or children under sixteen were employed more than eight hours a day. The majority opinion misinterpreted the statute and a-sumed that it permitted goods "to be freely shipped after thirty days from the time of their removal from the factory," whereas it permitted only the shipment of stock on hand thirty days after children had ceased to be employed. The law was so framed as to avoid the necessity of proof that children cooperated in the making of specific articles produced in a factory in which children were employed, and yet to remove any ban on shipment from an establishment which for thirty days had employed only adult labor. No fault was found with the statute under the due-process clause of the Fifth Amendment, nor was there any consideration of the question whether the prohibition on foreign commerce might be sustained although that on inter-tate commerce was void. Not a few opinions of the Supreme Court, it will be recalled, have in.plied that the power over foreign commerce is absolute. Such declarations, however, probably have no baring on a statute which a court holds not to be a regulation of commerce at all. The Child Labor case came before the court in a bill brought by two children through their father as "next friend" against a federal district attorney to enjoin the enforcement of the act. The propriety of the procedure was not questioned in the Supreme Court. The injunction granted below was sustained on the ground that the act was unconstitutional in that it was not a regulation of interstate con.n cree and was an invasion of the reserved powers of the states prohibited by the Tenth Amendnent. Mr. Justice Pay for the majority, said that "the act in 1's effect do not regulate tranportation among the states, but ans to stand a lie the ages at which children may be en ployed in nmaganin may acturing within the states,” To this, the ༔,ཡཱ beth: "The statute in question is within the power expressly given to Congress if considered only as to its immediate effects; if invalid it is so only upon some collateral ground." The majority concentrated their attention on the collateral ground which the minority thought was not within the competence of the court to consider, pointing out that previously the court had "excluded any inquiry into the purpose of an act which apart from that purpose was within the power of Congress." In dealing with the precedents which had sanctioned congressional prohibitions of interstate transportation, Mr. Justice Day declared that "in each of these instances the use of interstate transportation was necessary to the accomplishment of harn.ful results," whereas the products of child labor "are in themselves harmless." To this, Mr. Justice Holmes answered: "It does not matter whether the supposed evil precedes or follows the transportation. It is enough that in the opinion of Congress the transportation encourages the evil." As to the Tenth Amendment, the majority insisted that the at regulated manufacture and that the regulation of manufacture was one of the reserved powers of the states. The answer of the minority was as follows: "The Act does not meddle with anything belonging to the States. They may regulate their internal affairs and their doE-tic commerce as they like. But when they seek to send their products across the State line they are no longer within their rights. If there were no Constitution and no Congress ther power to cross the line would depend upon their neighbors, Unr the Constitution such commerce belongs not to the States Ft to Congress to regulate. It may carry out its views of pubLepley whatever indirect effect they may have upon the avities of the States. Instead of being encountered by a pro ve tariff at her boundaries, the State encounters the public y of the United States which it is for Congress to express." in his dissent in the Child Labor case, Mr. Justice Holmes tom Werks v. United States' for the point that the federal Pare d and Drug Act had been held to apply "not merely to arti 245 U. 8. 618. the time of the removal of such product therefrom children under the age of sixteen years have been employed or permitted to work," with similar prohibitions covering the products of mills and factories in which children under fourteen were employed or children under sixteen were employed more than eight hours a day. The majority opinion misinterpreted the statute and assumed that it permitted goods "to be freely shipped after thirty days from the time of their removal from the factory," whereas it permitted only the shipment of stock on hand thirty days after children had ceased to be employed. The law was so framed as to avoid the necessity of proof that children coöperated in the making of specific articles produced in a factory in which children were employed, and yet to remove any ban on shipment from an establishment which for thirty days had employed only adult labor. No fault was found with the statute under the due-process clause of the Fifth Amendment, nor was there any consideration of the question whether the prohibition on foreign commerce might be sustained although that on interstate commerce was void. Not a few opinions of the Supreme Court, it will be recalled, have implied that the power over foreign commerce is absolute. Such declarations, however, probably have no bearing on a statute which a court holds not to be a regulation of commerce at all. The Child Labor case came before the court in a bill brought by two children through their father as "next friend" against a federal district attorney to enjoin the enforcement of the act. The propriety of the procedure was not questioned in the Supreme Court. The injunction granted below was sustained on the ground that the act was unconstitutional in that it was not a regulation of interstate commerce and was an invasion of the reserved powers of the states prohibited by the Tenth Amendment. Mr. Justice Day, for the majority, said that "the act in its effect does not regulate transportation among the states, but aims to standardize the ages at which children may be employed in mining and manufacturing within the states." To this, the |