Seventy Years after the New Deal Revolution, Child Labor is Still Legal

In some previous posts, I’ve made two basic points about child labor and the Constitution in response to liberal commentators who can’t resist raising the issue of child labor any time anyone hints that there may be some constitutional limits to government regulatory authority. First, no one has ever seriously questioned the constitutionality of state child labor laws, and every state in the union passed such laws by the 1930s. Second, to the extent the pre-New Deal Supreme Court did question the constitutionality of federal child labor laws, that was both (a) a reasonable interpretation of the Commerce power and (b) arguably a good thing from a public policy perspective, because there’s no reason to believe that a one-size-fits-all policy with regard to specific child labor rules was appropriate in a country with vast regional differences in wealth.

It was the latter argument, in particular, that raised the hackles of some VC commenters. Only an evil Simon Legree, they suggested, would think that allowing kids under the age of 16 (the federal mandate invalidated by the Supreme Court early in the 20th century) to work in “adult” jobs is proper. Everyone knows that kids that age are too easily exploited by their parents for selfish gain, and allowing them to work would inevitably have deleterious effects on their health, well-being, and school performance and attendance.

I hope these commenters have saved some of their ire for the Obama Administration. I pointed out in one of the comment threads that child labor is, in fact, still permitted in the United States, so long as its agricultural work–and that agricultural work has some of the highest rates of worker injury. After considering a ban on much such work, the Obama Administration has backed down:

The Labor Department withdrew a proposed rule Thursday that would have limited the work that children can perform on farms…. The new regulations would have forbidden children younger than 16 years of age from completing “agricultural work with animals and in pesticide handling, timber operations, manure pits and storage bins.” It would also have barred farm workers under 16 from handling most “power-driven equipment” and from contributing to the “cultivation, harvesting and curing of tobacco.”

It seems to me quite overwrought for critics of the Old Court to denounce the Court for preventing the federal government from forbidding fifteen-year olds to work in factories when, almost one hundred years later, in a much wealthier United States, fifteen-year olds may still handle pesticides, work in timber operations and manure pits, harvest crops and tend livestock, and use power-driven equipment.

UPDATE: Partisan Obamaites are misconstruing this post in the comments as an attack on the Obama administration and/or its supporters. Rather, the point is that “progressive” legal commentators treat tolerance for child (really, young teenage) labor as a defining moral sin of the pre-New Deal Supreme Court. The Court’s decisions prohibiting federal regulation of child labor are deemed a sign of grave moral obtuseness, and any constitutional doctrine that might be deemed to lend support to such decisions is assumed to be obviously unacceptable in modern society, given our revulsion at child labor. But it’s quite difficult to square such outrage with the fact that some forms of child labor, including dangerous and difficult child labor, are still, almost 100 years later and in a much richer society, allowed under federal law, and are sufficiently entrenched in our society that the Obama Administration backed down from its attempt to ban them.

Imagine, for example, if the ghost of Justice William Day, author of Hammer v. Dagenhart, rose from the grave and showed up at Dahlia Lithwick’s door, ready for an interview. Lithwick, in her most outraged tone of voice, asks, “How could you and your colleagues invalidate laws aimed at the odious practice of child labor?” Would Day be out of line in responding, “We were following our best understanding of the Constitution’s limits on federal power, and anyway it didn’t seem to us that impoverished Mississippi needed the same rules as New York with three times the per capita income. But let me ask you something: is it true that even though there are no longer any constitutional restrictions on federal power to regulate labor, and that the U.S. is now wealthy beyond anything we could have dreamed of in the 1910s, that you still allow kids under sixteen year olds to engage in dangerous farm work?”