THE GREEN BAG
290
THE
CONSTITUTIONALITY CHILD
OF
LABOR
THE
BEVERIDGE
BILL
By Edwin Maxey THE bill introduced in the Senate byMr. Beveridge for the purpose of regulating child labor is a most interesting project of legislation in more ways than one. Not only is it an evidence of the growing influence of labor in politics, but it raises the whole question of the extent of police power possessed by the General Government. It may be safely said that there is no other question which is to-day of more vital interest in the field of American jurisprudence, and none more perplexing. The bill provides that "no carrier of interstate commerce shall transport or accept for transportation the products of any factory or mine in which children under fourteen years of age are employed or per mitted to work, which products are offered to said interstate carriers by the firm, per son, or corporation operating said factory or mine, or any officer, or agent, or servant thereof, for transportation into any other state or territory than the one in which said factory or mine is located." Owners of factories and mines are re quired to file every six months an affidavit, the form of which shall be prescribed by the Department of Commerce and Labor, but which shall in substance state that said factory or mine employs no child under fourteen years of age. A penalty of ten thousand dollars or imprisonment for six months or both is provided in case any interstate carrier fails to require such affi davit, and double that penalty for each violation of the act by the owner of mine or factory. As, therefore, the bill proposes to regu late child labor through an exercise of the powers of the Federal Government, derived from the interstate commerce clause, it is necessary that we examine carefully the
extent of powers conferred by that clause, in order to determine whether or not the Constitution confers any such powers upon the Federal Government as are necessary to the enforcement of the provisions of this bill. As against the states, the Federal Govern ment no doubt possesses the exclusive power to regulate interstate commerce. This was decided in Gibbons v. Ogden, 9 Wheaton, 1, and that decision has never been reversed. The regulation provided by the bill is, therefore, no infringement upon the rights of the states, unless, instead of being a regulation of interstate commerce, it is a police regulation under the guise of regulating commerce. If it is a police reg ulation, its constitutionality is open to dispute. If this can be sustained as a regulation of commerce, it becomes very difficult to see what limit there is to the power of the Federal Government to control the produc tive processes heretofore controlled under the police power of the states. If the Fed eral Government has the power to forbid interstate carriers to accept goods produced by child labor, would not the same power warrant the exclusion of goods produced in factories or mines in which men are per mitted to work more than eight hours per day? Would not the same power enable it to forbid interstate carriers to accept goods from concerns employing foreigners, or Mormons, or union laborers, or non-union laborers? In short, if this is a legitimate exercise of the power of Congress over commerce, the extent of control which Con gress may exercise over production becomes almost entirely a question of expediency, not of law. A large part of the police power now exercised by the states will have dis appeared and a considerable portion of what
