Statement Regarding History of the Language of the Child Labor Amendment, ca. October 1924



In the summer of 1922 the representatives of the various organizations met several times and considered the various drafts for a child labor amendment. There was general agreement that (1) Congress should be given the right to establish minimum standards for the protection of children from the evils of child labor, (2) that the right of the State to establish higher standards and to enforce such standards as it enacted should be safeguarded and (3) that a basis for cooperation of the States and the Federal Government in the administration of a Federal law should be made possible.

The most important of the proposals were the following:

(a) "The Congress shall have power to regulate or prohibit the labor of persons under eighteen years of age, and power is also reserved to the several States to regulate or prohibit such labor in any way which does not lessen any regulation of such labor or the extent of any prohibition thereof by the Congress."

(b) "Congress shall have power to regulate or forbid the labor of minors at an age, or under conditions deemed injurious to their health or morals. Such power shall be concurrent and not exclusive and the exercise thereof by Congress shall not prevent any state from adopting other or further regulations, not inconsistent therewith."

(c) "Congress shall have power to regulate or forbid the labor of minors at an age (or under conditions) deemed injurious to them. Such power shall be paramount but not exclusive and the several states may adopt other or further regulations not inconsistent with the exercise thereof by Congress."

(d) "The Congress shall have power to prohibit or regulate the gainful employment of persons under 18 years of age throughout the United States, its territories and possessions; provided that a state or territory may establish within its borders higher but not lower standards than the Congress may enact for the protection of such persons." [page 2]

After such discussions, Draft (a) was agreed upon as embodying the objects sought and as avoiding legal difficulties more successfully than either one of the others. This form was, on request, introduced in the Senate by Senator McCormick of Illinois and in the House by Mr. Foster of Ohio. In January of 1923 hearings were held by a [subcommittee] of the Senate Judiciary Committee. This [subcommittee] was composed of Senator Shortridge (California), Chairman, Senator Walsh (Montana), and Senator Colt (Rhode Island) -- all lawyers. A great deal of time was devoted to discussion of the language of the proposed amendment by this [subcommittee]. The form recommended by the organizations and introduced by Senator McCormick did not meet the approval of the [subcommittee] and it finally reported out a form substantially along the lines recommended by Professor William Draper Lewis of the Law School of the University of Pennsylvania on behalf of the National Child Labor Committee. This amendment, as reported to the Senate by the Senate Judiciary Committee on February 24, 1923 and by the House Judiciary Committee on February 23, 1923, was as follows:

"The Congress shall have power, concurrent with that of the several States, to limit or prohibit the labor of persons under the age of eighteen years."

Congress adjourned without acting on this proposed form.

After the adjournment of Congress, the question of form was raised in a series of meetings of the organizations sponsoring the amendment. Leading constitutional lawyers who were consulted thought there were possible difficulties in the form reported by the Senate Committee which might lead to confusion and considerable litigation, especially in connection with the word "concurrent." The [subcommittee] [page 3] of the Women's Joint Congressional Committee decided at its field meeting (in the autumn of 1923) that it would support the form originally introduced by Senator McCormick and Mr. Foster. At a meeting on November 20, 1923, of the Permanent Conference for the Abolition of Child Labor at which, in addition to the members of the [subcommittee] of the Women's Joint Congressional Committee, Mr. Gompers of the American Federation of Labor, Mr. Tippy of the Federal Council of Churches, Father Ryan of the National Catholic Welfare Conference, and Mrs. Durfee of the National Child Labor Committee were present, the same action was taken. However, some of those who attended this meeting did not believe that insistence on this form was the best plan to follow, and six conferences were held between November 23rd and December 6th with Senators Pepper, McCormick, Shortridge, and Walsh, and members of the Executive Committee of the Permanent Conference, as well as with interested lawyers and professors of law. Suggestions for substitutes were submitted by committee members to leading constitutional lawyers. Finally it was agreed to support the form drafted by Senator Pepper, which reads as follows:

Sec. 1. The Congress shall have power to prohibit the labor of persons under the age of eighteen years and to prescribe the conditions of such labor.

Sec. 2. The reserved power of the several States to legislate with reference to the labor of persons under eighteen years of age shall not be impaired or diminished except to the extent necessary to give effect to legislation enacted by the Congress.

The [subcommittee] of the Senate Judiciary Committee was not altogether satisfied with this form. Mr. Samuel McCune Lindsay, Professor Dowling of Columbia University and Professor Lewis of the Law School of [page 4] Pennsylvania University speaking on behalf of the National Child Labor Committee, thought this form could be improved and after much discussion, both formal and informal, through the months of December and January, the general agreement was reached the first week in February that all groups would support the form which was finally submitted to the States by Congress and contains in section 2 a slight modification of the Pepper draft.

During this period, authorities for the language used were assembled and carefully considered. The opinion of Dean Roscoe Pound of the Harvard Law School, Professor Cook of the Yale University Law School, Professor Dowling of Columbia University, Professor Bates of the University of Michigan, Professor Freund of the University of Chicago, and that of many others was secured. Senator Pepper went over all the material carefully, as did the members of the Senate [subcommittee] and Mr. Foster of the House. The form finally agreed upon is now before the States for ratification and reads as follows:

Section 1. The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age.

Section 2. The power of the several States is unimpaired by this article except that the operation of State laws shall be suspended to the extent necessary to give effect to legislation enacted by the Congress.