Hammer v. Dagenhart, 247 U.S. 251; 38 S. Ct. 529; 62 L. Ed. 1101 (1918)

Facts—In 1916 the Keating-Owen Act was passed. This provided that commodities produced under conditions in factories where children under fourteen years of age were employed or in mines where children under sixteen years of age were employed should be excluded from shipment in interstate or foreign commerce. Hours of employment were also specified for children between fourteen and sixteen years of age. Dagenhart, the father of two children, one under fourteen and the other between fourteen and sixteen, both of whom were employed in a mill in North Carolina, brought suit to enjoin Hammer, U.S. District Attorney, from enforcing the law against the employment of his two children. He got this injunction and Hammer took an appeal to the Supreme Court. The penalties connected with the act made it financially impossible to employ children under the age of sixteen because any establishment producing goods with the aid of under-aged children could not ship its products in interstate commerce until thirty days after cessation of the practice.

Question—Can Congress exclude from interstate commerce all goods manufactured by child labor?

Decision—No.

Reasons—J. Day (5–4). The making of goods and the mining of products is not commerce, and the fact that those things go afterwards into interstate commerce does not make them in their production interstate commerce per se. Congress has the power to regulate and deny to interstate commerce such products as impure foods, liquors, drugs, and others having possible harmful effects. However, there is nothing harmful, in themselves, in goods produced by child labor; therefore, this power does not apply. Child labor may be regu[1]lated only under the police power of the states, and therefore, Congress may not violate this state right. Thus the act “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.”

J. Holmes argued in dissent that the law adopted by Congress fell under its authority to regulate commerce and that prohibition is no less prohibition “when applied to things now thought evil.” Although seeking to exclude his own judgments on such matters, Holmes opined that there was far greater consensus on the evil of “premature and excessive child labor” than on regulation of alcohol and other goods the legality of which the Court had upheld in prior cases.

Note—United States v. Darby, 312 U.S. 100 (1941), which upheld the Fair Labor Standards Act of 1938, reversed Hammer

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