Nearly 100 years ago, the Supreme Court declared federal child labor laws unconstitutional in a case called Hammer v. Dagenhart. Twenty-two years later, the Court recognized that Hammer’s holding was “novel when made and unsupported by any provision of the Constitution,” and unanimously overruled this erroneous decision. Sen. Lee, however, believes that, while Hammer might “sound harsh,” the Constitution “was designed to be that way. It was designed to be a little bit harsh,” and thus we should return to the world where federal child labor laws are unconstitutional.
CAP goes on to point out that Clarence Thomas’s understanding of the Commerce Clause would render broad federal child labor laws unconstitutional.
Shocking! Or maybe not so much. As I pointed out recently, by the time Hammer was overruled in the late 1930s
every one of the forty-eight states had laws banning [for younger kids] and regulating [for older teens] child labor. Unlike the national Fair Labor Standards Act passed in 1938, most of these laws restricted children under fourteen, as opposed to sixteen, though a sixteen-year rule was gradually gaining traction.
And that was seventy-plus years ago; assumedly, the laws would have gotten stricter over time. Federal child labor laws, in short, were a solution in search of a problem. But they have served a useful purpose–providing an easy rhetorical device for those who oppose any meaningful constitutional limits on federal power.