us and has within it, as less than it, all that we believe and love. If we think of our existence not as that of a little god outside, but as that of a ganglion within, we have the infinite behind us. It gives us our only but our adequate significance. A grain of sand has the same, but what competent person supposes that he understands a grain of sand? That is as much beyond our grasp as man. If our imagination is strong enough to accept the vision of ourselves as parts inseverable from the rest, and to extend our final interest beyond the boundary of our skins, it justifies the sacrifice even of our lives for ends outside of ourselves. The motive, to be sure, is the common wants and ideals that we find in man. Philosophy does not furnish motives, but it shows men that they are not fools for doing what they already want to do. It opens to the forlorn hopes on which we throw ourselves away, the vista of the farthest stretch of human thought, the chords of a harmony that breathes from the unknown.

August, 1918.

Oliver Wendell Holmes.

ON

THE CHILD LABOR LAW CASE

N June 3, 1918, the Supreme Court of the United States held unconstitutional the act of Congress of September 1, 1916, entitled "An Act to prevent interstate commerce in the products of child labor and for other purposes." Mr. Justice Day delivered the opinion of the majority of the court. With the dissenting opinion, written by Mr. Justice Holmes, Mr. Justice McKenna, Mr. Justice Brandeis, and Mr. Justice Clarke concurred. The first section of the act is in the footnote.3

2

The court held that the act was not a regulation of interstate commerce, but rather of the hours of labor in manufacturing, — a matter exclusively reserved for state control. It was not held that the act was a regulation of interstate commerce and also of manufacturing; and that the two provisions were inseparable, hence the act was invalid. Nor was any point made in either opinion that the act was not confined to the products of child labor, but being directed against the products of the factory in which the child works, was therefore confiscatory and contrary to the Fifth Amendment.5

1 C. 432, 39 Stat. 675.

2 Hammer v. Dagenhart, 247 U. S. 251, 38 Sup. Ct. Rep. 529 (1918).

That no producer, manufacturer, or dealer shall ship or deliver for shipment in interstate or foreign commerce any article or commodity the product of any mine or quarry, situated in the United States, in which within thirty days prior to the time of the removal of such product therefrom children under the age of sixteen years have been employed or permitted to work, or any article or commodity the product of any mill, cannery, workshop, factory, or manufacturing establishment; situated in the United States, in which within thirty days prior to the removal of such product therefrom children under the age of fourteen years have been employed or permitted to work, or children between the age of fourteen years and sixteen years have been employed or permitted to work more than eight hours in any day, or more than six days in any week, or after the hour of seven o'clock post meridian, or before the hour of six o'clock ante meridian: Provided, that a prosecution and conviction of a defendant for the shipment or delivery for shipment of any article or commodity under the conditions herein prohibited shall be a bar to any further prosecution against the same defendant for shipments or deliveries for shipment of any such article or commodity before the beginning of said prosecution.

See United States v. Dewitt, 9 Wall. (U. S.) 41 (1869); The Employers' Liability Cases, 207 U. S. 463.

It is remarkable that no distinction was taken in this respect. It might well have

The majority opinion may be divided into two main phases. The first is devoted to showing that the statute is not a regulation of interstate commerce at all. The second rather assumes that the statute deals with interstate commerce, but nevertheless is invalid because of its necessary effect in regulating "hours of labor of children in factories and mines within the States, a purely state authority." The concluding paragraph combines both phases, as follows:

"Thus the act in a twofold sense is repugnant to the Constitution. It not only transcends the authority delegated to Congress over commerce but also exerts a power as to a purely local matter to which the federal authority does not extend."

THE PROPOSITION THAT THE STATUTE IS NOT A REGULATION

OF INTERSTATE COMMERCE

The words of the statute are entitled to attention. The statute provides "That no producer, manufacturer, or dealer shall ship or deliver for shipment in interstate or foreign commerce any article or commodity" having the qualities specified.

In the Dagenhart Case the articles were cotton goods produced in a factory employing children. Section 6 of the act is definitive:

"The term 'ship or deliver for shipment in interstate or foreign commerce' as used in this act means to transport or to ship or deliver for shipment from any State or Territory or the District of Columbia to or through any other State or Territory or the District of Columbia or to any foreign country."

Thus the act does not by its terms regulate manufacture or hours of labor or transportation within a state. As the dissenting justices said:

"The statute confines itself to prohibiting the carriage of certain goods in interstate or foreign commerce."

been said that such an all-embracing prohibition was merely a penalty upon the manufacturer who employed child labor, was not necessary to the accomplishment of the legislative purpose to prevent the interstate movement of products of child labor and hence not within the authority of such cases as Otis v. Parker, 187 U. S. 606 (1903); Purity Extract Co. v. Lynch, 226 U. S. 192, 201 (1912). These cases hold that, so far as necessary for proper enforcement, the means adopted to abolish the evil aimed at may include transactions innocent of themselves.

It had been regarded as settled that the transportation of commercial commodities across state lines was interstate commerce." It cannot be that the transportation across state lines of cotton goods even though manufactured by children is not interstate

commerce.

The majority of the court nevertheless held that

"The act in its effect does not regulate transportation among the States. . .

It is said that

"... the power (over interstate commerce) is one to control the means by which commerce is carried on, which is directly the contrary of the assumed right to forbid commerce from moving and thus destroying it as to particular commodities."

To reach this conclusion it was necessary either to overrule or distinguish the many cases in which the court had held that similar prohibitions of the interstate movement of particular commodities are regulations of interstate commerce. The court referred to the Lottery Case, Champion v. Ames, the Pure Food Case, Hipolite Egg Co. v. United States, two White Slave cases, Hoke v. United States and Caminetti v. United States,10 and the Webb-Kenyon Liquor Law Case, Clark Distilling Co. v. West. Md. Ry. Co.11

9

8

The statutes in each of these cases are indistinguishable in terms from that in the Child Labor Case so far as the absolute prohibition of the movement of particular commodities in interstate commerce is concerned.12

• Welton v. Missouri, 91 U. S. 275, 280 (1875); Railroad Co. v. Husen, 95 U. S. 465 (1877); Schollenberger v. Pennsylvania, 171 U. S. 1 (1898); Southern Ry. Co. v. Reid, 222 U. S. 424, 434 (1912).

12 Absolute prohibitions of the interstate commerce movement of particular commodities are contained in the following statutes:

Act of May 29, 1884, c. 60, 23 Stat. 31 (cattle); Act of February 8, 1897, c. 172, 29 Stat. 512 (obscene literature); Act of May 25, 1900, c. 553, 31 Stat. 188, § 3 (birds killed contrary to state law); Rupert v. United States, 181 Fed. 87 (1910); Act of March 3, 1905, c. 1496, 33 Stat. 1264, §§ 2, 4 (cattle); extended in Act of March 4, 1913, c. 145, 37 Stat. 828, 831; United States v. Nixon, 235 U. S. 231 (1914); Act of June 30, 1906, c. 3913, 34 Stat. 669, 674, etc. (meat); United States v. Lewis, 235 U. S. 282 (1914); Act of April 26, 1910, c. 191, 36 Stat. 331 (insecticides); Act of

The Lottery Act of March 2, 1895,13 provides:

"That any person who shall cause to be . . . carried from one State to another in the United States, any paper shall be punishable."

The Pure Food Act provides: 14

"That the introduction into any state . or shipment to any foreign. country of any article of food or drugs. . . is hereby prohibited; and any person who shall ship or deliver for shipment from any State to any other State . . . or to a foreign country . . . shall be guilty of a misdemeanor."

The White Slave Act of June 25, 1910,15 provides in section 2:

"That any person who shall knowingly transport . . . in interstate or foreign commerce any woman or girl . . . shall be deemed guilty of a felony."

...

The Webb-Kenyon Act of March 1, 1913,16 provides:

"That the shipment or transportation . . . of any spirituous liquor of any kind, from one State . . . into any other State . . . in violation of any law of such State . . . is hereby prohibited."

The cases were not overruled. They were distinguished on the ground that in the Child Labor Case the goods shipped are of themselves harmless and no evil attends their interstate transportation. With reference to the cases cited, the court said:

"They rest upon the character of the particular subjects dealt with and the fact that the scope of governmental authority, state or national,

August 20, 1912, c. 308, 37 Stat. 315 (nursery stock); Act of March 4, 1913, c. 145, 37 Stat. 828, 832 (virus antitoxins).

Similar prohibitions as to importation in foreign commerce are contained in the following statutes:

Act of June 26, 1848, c. 70, 9 Stat. 237 (drugs and medicinal preparations); Act of August 30, 1890, c. 839, 26 Stat. 414, § 2 (food); Act of October 1, 1890, 26 Stat. 567, C. 1244, 610, 613 (tea); Buttfield v. Stranahan, 192 U. S. 470 (1904); Act of August 27, 1894, c. 349, 28 Stat. 509, 552, § 24; repeated in subsequent Tariff Acts of July 24, 1897, 30 Stat. 151, 211, C. II, § 31; August 5, 1909, 36 Stat. 11, 87, c. 6, § 14; October 3, 1913, 38 Stat. 114, 195, c. 16 (convict-made goods); Act of June 20, 1906, c. 3442, 34 Stat. 313 (sponges); The Abby Dodge, 223 U. S. 166 (1912); Act of April 9, 1912, c. 75, § 10, 37 Stat. 81 (white phosphorus matches); Act of July 31, 1912, c. 263, 37 Stat. 240 (prize-fight films); Weber v. Freed, 239 U. S. 325 (1915).

13 C. 191, 28 Stat. 963.

14 Act of June 30, 1906, c. 3915, 34 Stat. 768, § 2.

15 C. 395, 36 Stat. 825.

16 C. 90, 37 Stat. 699.